Brooke v Secretary of State for Justice [2009] EWHC 1396 (Admin)

[2009] EWHC 1396 (Admin)

Case No CO/12084/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Friday, 15th May 2009

Strand

London WC2A 2LL

B e f o r e:

SIR ANTHONY MAY

President of the Queen's Bench Division

MR JUSTICE BLAKE

Between

BROOKEClaimant

Between

SECRETARY OF STATE FOR JUSTICEDefendant

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Mr H Southey (instructed by Irwin Mitchell) appeared for Claimant

Mr S Grodzinski (instructed by the Treasury Solicitor) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE BLAKE: The claimant in these proceedings seeks judicial review of policies promoted by the Secretary of State that he submits has illegitimately resulted in him being prevented from any home detention release on curfew. In order to examine those propositions, it is first appropriate to set out the legislative scheme, then to turn to the facts of the particular case, and then to examine in some further detail the arguments advanced on his behalf.

[2]Section 244 of the Criminal Justice Act 2003 provides under subsection (1) a duty to release prisoners to whom the section applies who have served the requisite custodial period. That usually means one half of the determinate sentence imposed by the sentencing judge. Section 246 of the same statute gives the Secretary of State power to release prisoners on licence before he is required to release them, and subsection (1) sets out the terms of that discretion. Subsection (4), however, notes that subsection (1) does not apply where -- "(f) the prisoner is liable to removal from the United Kingdom."

[3]Sections 259 to 261 of the Criminal Justice Act 2003 deal with persons who are liable to removal from the United Kingdom. In summary, section 259 spells out those who are liable to immigration action by deportation, refusal of entry, removal as an illegal entrant or otherwise, and section 260(1) says:

" . . . where a fixed-term prisoner is liable to removal from the United Kingdom, the Secretary of State may remove him from prison under this section at any time during the period of 270 days ending with the day on which the prisoner will have served the requisite custodial period."

I interpolate to note that originally the period for removal of those liable to removal early was 135 days, but from 7th April 2008 it was extended to the period of 270 days by the Early Removal of Fixed Term Prisoners (Amendment of Eligibility Period) Order 2008 SI 2008/978.

[4]That being the essential statutory regime, it is then necessary to note that on 26th November 2006 the present Prison Service Instruction, of which complaint was made, was promulgated. There had been earlier such instructions, but the instruction of that date is the one under review. By paragraph 11 of that instruction, it is made plain that, although the powers for release on home detention curfew earlier than the Secretary of State is required to release a prisoner do not have further classes of statutory ineligibility in respect of certain long term prisoners serving determinate sentences, a policy was taken that prisoners serving a determinate sentence of four years or more will, as a matter of policy, be presumed to be unsuitable for release on home detention curfew unless exceptional circumstances exist. But they must be provided with their HDC eligibility date.

[5]The apparent basis for this policy was to maintain public confidence in the workings of the penal system, but exercise the discretion afforded to the Secretary of State to permit early release in the cases of those who are considered to have been serving sentences for the less serious offences and reserving the prison estate for those whose length of sentence is an indication that, by one or more of the sentences, they are serving for more serious offences.

[6]That setting out the context for this case, the facts relating to the claimant can now be mentioned. He is a British citizen and resident, and always has been, in the United Kingdom. On 6th July 2001, for offences of burglary and conspiracy to burgle, he received at the Crown Court a sentence of seven years' imprisonment. On 12th November 2001, for four further terms, including one term consecutive to the seven year term, he was given further sentences of imprisonment. He was then released on licence for a short period from 5th May to 30th May when his licence was revoked. On 2nd February 2007, he was sentenced again at the Crown Court to 10 years' imprisonment for burglary, and a further 459 days were imposed pursuant to section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. He was then informed that his earliest release date, having served the requisite custodial period, was 18th September 2012. That period of his sentences meant that he was presumptively ineligible for home detention curfew under the Prison Service Instruction to which reference has been made. If he had been eligible for HDC, then his earliest release date, subject to the restrictions that that regime imposed, would have been 7th May 2012.

[7]In these proceedings he challenges his exclusion from release on home detention curfew essentially for two reasons: first because he does not qualify under the HDC scheme at all, because of the presumptive eligibility; and secondly, because the period of contrast between his own requirement to serve the custodial period in full without release on HDC results in a period of 270 days further time spent in prison, which contrasts with the arrangements that are made for those who are liable to removal who can be removed now 270 days before they serve the minimum term.

[8]It is submitted before us that this policy is liable to challenge on what emerged to be two grounds. First, it is submitted by Mr Southey, who appears for the claimant, that the policy violates the claimant's human rights because early release schemes fall within the ambit of

Article 5 of the European Convention on Human Rights

and there is unlawful discrimination in the context of Article 5 claims which are contrary to

Article 14 of the European Convention on Human Rights

. Secondly, that before the policy was adopted there was no compliance with the statutory duty under section 71(1)(b) of the Race Relations Act 1976 as amended.

[9]It should be observed that there is no complaint of a failure to comply with section 71(1)(a) of the Race Relations Act, in the light of the fact, first, that a claim of direct discrimination on the grounds of national origins is not any longer pursued before us, although it was ventilated in the claim form and skeleton argument, and there had never been any suggestion that complaint could be made of indirect discrimination, having regard to the state of the law on that topic.

[10]Dealing first with the Article 14 claim, the terms of Article 14 are so well known it is not necessary to recite it. It is common ground between the claimant and Mr Grodzinski, who appears for the respondent, first, that there was some difference in treatment between those who could be released early for the purposes of removal and those who would not qualify for eligibility under the HDC scheme, and secondly, that it was accepted that Article 14 was in play as a measure of potential application to this case because Article 5 was engaged in the particular context of the case.

[11]Mr Southey submits that there is unjustified differential treatment between those whose situations are analogous so as to amount to discrimination contrary to Article 14, taken together with Article 5, and secondly, that discrimination is on the grounds of nationality and is accordingly unlawful.

[12]Mr Grodzinski, in his helpful written submissions for the Secretary of State, submits that the two classes of comparatives are not in an analogous situation at all; secondly, that any difference in treatment is not based upon nationality; and thirdly, even if it were, it would be justified.

[13]Mr Southey accepts that the application of Article 14 in this kind of case requires a comparison of the relevant characteristics within the context of the case. He relies upon the observations to that effect by Lord Bingham in the decision of the House of Lords in the case of A v Secretary of State for the Home Department [2005] 2 AC. Mr Southey submits that the possibility of early release can be seen to be the relevant consideration in this case, because it really is part of the sentencing package, or the consequences of sentencing, that was imposed by the trial judge. By contrast, the Secretary of State submits that the really relevant characteristic in the present context is that one class of person is a foreigner who is eligible for removal, and the policy is that those who are liable to removal should be removed as soon as possible, commensurate with sentencing policy and the need to maintain public confidence in the sentencing regime.

[14]In my judgment, no assistance is to be gained in the relevant comparison in this case by reference to what matters the sentencing judge is able or obliged to take into account when sentencing offenders for identical conduct before him or her where there may be a difference in impact of a custodial sentence. But the statutory regime itself identifies that the rationale for excluding foreign nationals from the home detention curfew regime and subjecting them to a separate regime is to enable them to be removed as early as possible, thereby freeing up scarce resources within the prison estate.

[15]I do not accept that serious offenders who are foreign nationals liable to summary removal are in the same position as serious offenders who are not. Their situations are not comparable and are not in an analogous situation. Removal or deportation is administrative action to which some foreign nationals are subject because of a combination of their immigration status and their offending. Indeed, the consequences of removal and prohibition on return might be regarded by some as at least as severe as continuing to serve a sentence in prison, but they are liable to such sanction for reasons to do with removability, and that does not amount to discrimination on the grounds of nationality, because they are precisely in different positions.

[16]That point is made in the case of Al-Rawi v Secretary of State for Foreign Affairs

[2008] QB 289

at paragraph 78, where complaint was made as to the ability of the Foreign Secretary to make differentiations between nationals and non-nationals. It is pertinent to note that the same point is made in the context of European Community law and the strong presumption on the prohibition of discrimination in a case to which we were not referred,

case C-171/96

, Roque v Lieutenant Governor of Jersey [1998] ECR at paragraphs 40 to 44.

[17]Mr Southey's reliance upon the decision in A v Secretary of State in the House of Lords is, in my judgment, nothing to the point, since there the comparison was between the foreign nationals who were detained but could not be removed and other nationals who were suspected of similar activity but who could not be subject to immigration removal because of their nationality. There the relevant consideration was their detention but not their removal.

[18]In my judgment, it is not the case that the policy under challenge affords foreign prisoners serving a similar sentence to the claimant a special privilege of early home release. They are not released home on home detention curfew but they are detained and then removed from prison perhaps earlier than would otherwise be the case with a view to expelling them from the country. The Secretary of State would be fully entitled to conclude that in both cases he is seeking to ensure that the public in this country do not face the early release of people irrespective of their nationality where their offending is either serious or they can be removed promptly whence they came.

[19]Mr Southey accepts that the question of whether the foreign national or the British national are similarly situated is central to the ability to sustain a discrimination argument, and so much was made clear in the case of R (on the application of Carson) v Secretary of State for Work and Pensions

[2005] UKHL 37

, reported at

[2006] 1 AC 173

. He submits, however, that overall assessment of the situation, and particularly what he submits was the express reliance on nationality as a ground for distinction, is important. He relies upon the observations of the European Court of Human Rights in the case of Gaygusuz v Austria

(1997) 23 EHRR 364

. That case concerned differential treatment between Austrian and non-Austrian nationals in respect of emergency social welfare assistance. The European Court, at paragraph 42 of its judgment, said this:

"According to the court's case law, a difference of treatment is discriminatory for the purposes of Article 14 if it 'has no objective and reasonable justification', that is if it does not pursue a 'legitimate aim' or if there is not a 'reasonable relationship of proportionality between the means employed and the aim sought to be realised'. Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. However, very weighty reasons would have to be put forward before the court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention."

On the facts of that particular case, the claimant was in a relevantly comparable situation with Austrian nationals regarding eligibility to pension entitlement, since the person was lawfully resident and had paid his contributions. But the reference to "weighty grounds" is, in context, a reference to cases where the difference in treatment is based exclusively on the ground of nationality. In my judgment, that is not the position made out here.

[20]As the difference in the statutory regimes under section 246 and 260 make clear, the eligibility for early removal for the foreign nationals is their removability, the fact that they can be removed at all. There are a whole class of people who could not be removed. They include British citizens, Commonwealth nationals who have the right of abode under the Immigration Act 1971, Commonwealth nationals resident here before 1st January 1973, EEA nationals with residence rights under European Community law that may survive their offending, as well as any foreign nationals with very strong private family life or other reason to prevent their removal. They would not be removable. They would be in the same position as British citizens who, as a matter of domestic and international law, cannot be expelled from their own country. This represents a wide diversity of people from different citizenships and ethnic origins. There is really no indication to racial distinction made by using the criteria of removability, which is the criteria identified which by the statute. There is not even citizenship itself which is the entire basis for the distinction.

[21]I therefore do not consider that this is a case where there are any grounds to believe that suspect grounds have been relied upon as the basis of distinction in treatment. In any event, in my judgment, there would have been abundant justification for this measure. The Secretary of State is entitled to conclude that it is in the public interest that serious offenders sentenced to determinate terms are not at liberty until they have served their minimum term. Removal of any foreign nationals who fall into this class and denial of home detention curfew to British nationals has the same substantive effect.

[22]I do not accept that the Secretary of State is precluded from having such a policy by reference to the considerations that were discussed in a different context, namely what the Parole Board could do with respect to release of a life prisoner in the case of R v Parole Board ex parte White 16th December 1994, unreported, upon which Mr Southey placed some reliance. Given the cost of detaining serious offenders, it is perfectly sensible for the use of scarce resources to remove those who can free up space in the detention estate as soon as Parliament has decreed this should be done.

[23]I therefore conclude that, for all three reasons, the claim under Article 14 fails.

[24]I turn then to consider the claim under the Race Relations Act. Section 71 of the Race Relations Act 1976 says that every body or other persons specified in Schedule 1A -- which it is common ground includes the Secretary of State -- in carrying out its functions shall have due regard to the need:

"(a) to eliminate unlawful racial discrimination [I interpolate, as previously indicated not relied upon]; and (b) to promote equality of opportunity, and good relations, between persons of different racial groups."

[25]Mr Southey submits that there is no evidence before this court that, in formulating the policy in 2006 and thereafter, that consideration was taken into account. It is clear from the decision of the Court of Appeal in the case of R (on the application of Baker) v Secretary of State for Communities and Local Government

[2008] EWCA Civ 141

, that section 71 is not a duty of results but is a duty of direction. Paragraphs 31, 36, 37, 40 and 46 in the judgment of the court, delivered by Dyson LJ, indicate that it is sufficient for a relevant decision-maker to have taken account substantively of the considerations required without any form of words being required to direct him or herself as to those measures.

[26]The claimant in this case relies upon the case of R (on the application of C) v Secretary of State for Justice

[2008] EWCA Civ 882

, delivered on 28th July 2008, and the observations of Buxton LJ at paragraph 54 as to the importance of the self-direction that the authorities must make before adopting the policies. However, it is plain that the context of that case -- namely a policy authorising the use of force on young people in detention and secure training centres -- had a very clear and obvious impact upon community relations given the likely persons who were to be affected by it. The context is very different from the factual basis in this case. In this, as is so often the case, context is everything, as Keene LJ made plain at paragraph 87 in that case.

[27]It is correct, as the claimant observes, that the respondent did not give very substantial consideration to this in the detailed grounds of defence, and it was only shortly before the hearing of this case that the respondent has filed the second witness statement of Mr Hopley. There was then some disclosure sought in support of some of the avowals in that witness statement. However, no issue has been taken with the admissibility or reliability of that statement and, from the terms of that statement, it is, in my judgment, clear that the Secretary of State did have regard to the matters which are in substance required to be considered by section 71(1)(b) of the Race Relations Act. In paragraph 3 of his witness statement Mr Hopley says this:

"As explained below, the factual position is that before taking the policy decisions they did, Ministers fully considered the potential for disparity of treatment as between different groups of prisoners. In giving this statement, I should explain that I have been involved in these matters since taking up my current post in October 2003. I have discussed them personally with Ministers. I am therefore in a good position to be able to report the considerations that Ministers had when making the policy decisions that they did. 4. Section 71 Race Relations Act 1976 provides that public bodies should have due regard to the need to (a) eliminate unlawful racial discrimination and (b) to promote equality of opportunity and good relations between persons of different racial groups. I believe that due regard was given to these factors. Throughout their consideration of the early release schemes as whole (HDC, ERS, and the End of Custody Licence Scheme (ECL)), Ministers have also been guided by [a number of other factors which are spelled out]."

[28]As indicated, the various extracts from memorandum that have been supplied to this court and to the claimants in pursuit of disclosure, indicates that the potential for complaint by British citizens or those who are not otherwise going to be removed early on the basis of removability from the country, were considered at various stages in the elaboration of his policy following the enactment of the 2003 statute. In the context of this case, where removability rather than citizenship or any other characteristic that would impact more directly upon ethnicity or racial origins, that evidence satisfies me that there has been no failure to take into account relevant considerations. This policy cannot be challenged on the grounds of illegality contrary to section 71. Therefore that limb of the argument also fails. In my judgment, this application should be dismissed.

SIR ANTHONY MAY: I agree that this claim for judicial review fails for the reasons that Blake J has given and whose account of the facts and circumstances I gratefully adopt.

[30]The essential point, in my view, is that the position of, and statutory release arrangements for, prisoners who are liable to be removed from the United Kingdom are not analogous with those for prisoners who are not so liable to be removed. The different regimes are in place not because of differences in nationality, but because the first class of prisoner is liable to be removed and the second is not. The two situations are not comparable. Release on home detention is to be seen as a relaxation of a custodial sanction. Release for the purposes of removal is to enable a different sanction from imprisonment in this country to be brought into effect. Such prisoners are not released into the community.

[31]As to section 71 of the Race Relations Act, the evidence now before the court in the form of Mr Hopley's second witness statement, to which Blake J has referred, sufficiently indicates that the Secretary of State did have due and sufficient regard to the need to promote equality of opportunity and good relations between persons of different racial groups. I regard the real possibility of the differences between the two regimes impairing good relations between prisoners or others as remote, for the very same reason that the discrimination claim fails. If there is no relevant discrimination, the scope for impairing good relations is scarcely likely to be made out. But, however that may be, the evidence indicates that the Secretary of State fully appreciated the differences and had due regard to their possible consequences.

[32]Accordingly, the claim for judicial review is dismissed.

[33]MR GRODZINSKI: My Lords, I am grateful. The Secretary of State seeks an order for his costs, subject, of course, to the relevant provisions of the Access to Justice Act.

SIR ANTHONY MAY: Are you in receipt of public funding?

[35]MR SOUTHEY: We are, my Lord, so subject to section 11 of the Access to Justice Act, I do not think I can resist that application.

SIR ANTHONY MAY: The form of order is well known. An order for costs. What is the form?

[37]MR SOUTHEY: It is, as I understand it, that the claimant to pay the defendant's reasonable costs, to be assessed subject to section 11 of the Access to Justice Act 1999.

SIR ANTHONY MAY: That is it?

[39]MR SOUTHEY: As I understand it. Section 11 is effectively the mechanism by which what was known as the "football pools order" is brought into effect.

SIR ANTHONY MAY: It also gives the Legal Services Commission the opportunity to have their say.

[41]MR SOUTHEY: Yes. That is as I understand it. The claimant has two applications. One is short and uncontroversial which is the assessment of the claimant's Legal Services Commission costs.

MR JUSTICE BLAKE: Yes.

[43]MR SOUTHEY: The second application is permission to appeal. I suspect, given the terms of the judgment, that I am not going to persuade the court on prospect of success, but we would say that there is an important issue here. Clearly one would see that there has been sensitivity, for understandable reasons, about this issue and the recognition that there might be a challenge. This claim was considered by Collins J be a test case. We say it does raise an issue, albeit a relatively straightforward issue, which is whether or not the two schemes could be regarded as part of the penalty or discrete because one is an immigration scheme and one is not. That, I submit, is of sufficient importance to justify permission to appeal.