Neutral Citation Number: [2013] EWHC 3029 (Admin)
CO/12900/12 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Chester Civil Justice Centre 
Chester County Court
Trident House, Little St John Street
										 Chester CH1 1SN 

Thursday, 25th July 2013
 
B e f o r e: 

MR JUSTICE MOSTYN

Between: 
THE QUEEN ON THE APPLICATION OF COSSEY
Claimant

v 

SECRETARY OF STATE FOR JUSTICE
Defendant 
 
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Miss P Kaufmann QC  appeared on behalf of the Claimant 
Mr J Strachan QC appeared on behalf of the Defendant 
 
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1.	MR JUSTICE MOSTYN:  
2.	In these judicial review proceedings the claimant complains that he has been the victim of wrongful discrimination.  His particular circumstances are that he is a convicted prisoner, serving an indeterminate sentence for an especially serious offence, but who many years ago passed the tariff period fixed for punishment, retribution and deterrence.  He therefore says that he is being detained only for the purposes of the safety of the public.  In these particular circumstances he claims that he should be afforded some, but not all, of the rights and privileges allowed to unconvicted and civil prisoners.  The refusal to afford him these rights constitutes, he claims, a violation of Article 14 of the European Convention on Human Rights.  This is, as is very well known, provides that:  
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." 
3.	In my judgment this claim is absolutely meritless.  It is the sort of claim that gives the Convention, incorporated into our domestic law by the Human Rights Act 1998, a bad name and which furnishes its critics with ammunition to shoot it down.  The Convention incorporates into our law certain basic precious rights and freedoms (most of which had existed in our law any way).  They were formulated in 1950 as a direct response to the tyrannical horrors of the Second World War and the encroachment of Communism.  In my own decision of Re: RK [2010] EWHC 3355 (COP) at paragraph 41 I stated:  
"Although the originalist theory of statutory interpretation is generally eschewed on this side of the Atlantic it is worth remembering the historical context that informed the framing of the Convention in 1950.  Art 5 was an important bulwark against totalitarian tyranny.  As Parker J recently reminded us in Re: MIG & MEG at para 222 its purpose is to prevent 'arbitrary or unjustified deprivations of liberty'.  I find it impossible to conclude that the framers of the Convention would even in their wildest dreams have contemplated that Art 5 might be engaged by the facts presented here.  Even allowing for the accepted concept that the Convention is a living instrument there has to be a line drawn somewhere where the court will say 'thus far and no farther' (to echo Lord Steyn, writing in a different context in White (orse Frost) v Chief Constable of South Yorkshire Police [1999] 2 AC 455, HL at page 500)."
3.	So too here. Sir David Maxwell-Fyfe, later Lord Kilmuir, Lord Chancellor, was the key architect of the Convention.  As a prosecutor at Nuremburg he would have been especially alive to the sort of abuses which the Convention was designed to prevent in the future.  Were he to be alive today I think he would be amazed to be told that a claim for violation of Article 14 was being advanced on the facts of this case.  
4.	Let me deal with the facts in a little more detail. The claimant is 36 years old.  In September 1993, when aged 16, he pleaded guilty to an offence of arson being reckless as to whether life was endangered.  That was plainly an especially serious offence.  He was sentenced to be detained during Her Majesty's Pleasure under section 53 of the Children and Young Persons Act 1933 (which has since been repealed).  Either at that time or later (I have not been told which) the tariff period for punishment and retribution and deterrence was fixed at 3 years.  The claimant is therefore 16 years post tariff.  That he continues to be detained is a result of judgments formed by the Parole Board that were he to be released he would pose a danger to society.  
5.	When someone is imprisoned their human rights are necessarily compromised.  In my own decision of J Council v GU & Ors [2012] EWHC 3531 (COP), another case under the Mental Capacity Act 2005, I stated at paragraph 8:  
"As is extremely well‑known, Article 8 furnishes the right to respect for a person's private and family life, his home and his correspondence. But it is not an absolute right and it may be curtailed 'in accordance with the law' where it is necessary inter alia for the protection of health and morals, or for the protection of the rights and freedoms of others. It is well‑established that even people in detention, whether in prison or in mental health institutions, retain nonetheless these rights, at least up to a point ‑ that point being that the exercise of the right obviously cannot have the effect of destroying the purpose and function of the detention in question: see R (P and Q) v Home Secretary [2001] EWCA Civ 1151 at para 78. Thus in the case of imprisonment the right does not extend to allowing prisoners conjugal visits, or to possession of mobile phones, or for that matter single cells. On the other hand it does extend to allowing visits from family and friends, the use of payphones, and the sending and receiving of letters. Thus is the balance struck between the exercise of the right and the purpose and function of imprisonment." 
6.	Within prisons certain categories of prisoners are obviously treated differently depending on their security classification. The scope of confinement between Category A and Category D are worlds apart.  Further, convicted prisoners are treated differently to unconvicted and civil prisoners for the blindingly obvious reason that the prisoners in the latter class are not criminals.  In the latter class the unconvicted prisoners have certain rights and privileges not afforded to convicted prisoners.  These include: 
(a) the right to be visited by a medical practitioner of their own choice; 
(b) the right to wear their own clothes; 
(c) the right not to be forced to work; 
(d) the right to send and receive as many letters as they wish; 
(e) the right to receive as many visits as they wish; 
(f) the right to receive, at their own expense, as many books, newspapers and writing materials as they wish;  
(g) the right to have many items for cell activities and hobbies as they wish; 
(h) the right to carry out their business activities; 
(i) the right to receive a greater quantity of tobacco than is allowed to convicted prisoners; 
(j) the right to be separated, as far as is reasonably possible, from convicted prisoners; 
(k) the right not to have to share a cell with a convicted prisoner; 
(l) the right, in certain circumstances, to continue to receive social security payments; and 
(m) the right to vote.  
The claimant here seeks to be granted all these rights apart from the last two. He would not be entitled to receive social security payments even if he were unconvicted, so that particular right is academic.  I was told by his leading counsel, Miss Kaufmann QC, that he was pursuing the right to be able to vote "by other means".  
7.	The only common feature within the class of unconvicted and civil prisoners is that none of them has been convicted of a crime.  Otherwise these people are detained for a wide variety of reasons.  So far as civil prisoners are concerned, they are likely to be inside either because they have failed to pay a debt or because they have breached an injunction.  Historically imprisonment for debt was commonplace and debtors were confined in prisons established specifically for that purpose, where they were afforded all liberties except liberty itself.  Thus they could bring in their families, staff and possessions.  Imprisonment for debt remains possible for a few types of debt, typically for failure to pay things like maintenance orders, child support and taxes.  I described the system in my recent decision of Bhura v Bhura [2012] EWHC 3633 (FAM).  Under section 5(2) of the Debtors Act 1869 an order for imprisonment can only be made where the applicant has: 
"... proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default and refuse or neglected or refuses or neglects to pay the same." 
Thus the purpose of imprisonment can be seen for this class of civil prisoner to be almost entirely coercive.
7.	Where a contemnor is sentenced to imprisonment for breach of an injunction the sentence will be a mixture of punishment and coercion.  Thus in JSCBTA Bank v Solodchenko & Ors [2011] EWCA Civ 1241, [2012] 1 WLR 350 Jackson LJ stated:  
"55.  From this review of authority I derive the following propositions concerning sentence for civil contempt, when such contempt consists of non‑compliance with the disclosure provisions of a freezing order:
(i) Freezing orders are made for good reason and in order to prevent the dissipation or spiriting away of assets. Any substantial breach of such an order is a serious matter, which merits condign punishment.
(ii) Condign punishment for such contempt normally means a prison sentence. However, there may be circumstances in which a substantial fine is sufficient: for example, if the contempt has been purged and the relevant assets recovered.
(iii) Where there is a continuing failure to disclose relevant information, the court should consider imposing a long sentence, possibly even the maximum of two years, in order to encourage future co‑operation by the contemnor.
56. In the case of continuing breach, out of fairness to the contemnor, the court may see fit to indicate (a) what portion of the sentence should be served in any event as punishment for past breaches and (b) what portion of the sentence the court might consider remitting in the event of prompt and full compliance thereafter. Any such indication would be persuasive, but not binding upon a future court." 
8.	A person accused of crime may be remanded in custody under Schedule 1 to the Bail Act 1976 (as amended) only in following circumstances:  
"(2) The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would‑
(a) fail to surrender to custody; or. 
(b) commit an offence while on bail; or. 
(c) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or to any other person.  
 (2A) The defendant need not be granted bail if‑ 
(a) the offence is an indictable offence or an offence triable either way; and 
(b) it appears to the court that he was on bail in criminal proceedings on the date of the offence.  
 (3) The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection or, if he is a child or young person, for his own welfare.  
 (4) The defendant need not be granted bail if he is custody in pursuance of a sentence of court or of any authority acting under any of the Service Acts. 
 (5) The defendant need not be granted bail where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this Part of this Schedule for want of time since the institution of the proceedings against him.  
 (6) The defendant need not be granted bail if, having been released on bail in or connection with the proceedings for the offence, he has been arrested in pursuance of section 7 of this Act."
9.	It can be seen therefore that there are a wide variety of circumstances where bail may be legitimately refused only one of which, paragraph 2(b), is remotely comparable to the position in which the claimant now is.
10.	However, the key difference between a person remanded in custody when accused of a crime is that he is presumed innocent.  Indeed, he actually is innocent until he is found guilty.  Therefore, in my opinion, Prison Service Order No. 4600 rightly in paragraph 1.1 describes unconvicted prisoners in the following terms: 
"Unconvicted prisoners have not been tried and are presumed to be innocent, the Prison Service's sole function is to hold them in readiness for their next appearance at court.  Their imprisonment should not deprive them of any of their normal rights and freedoms as citizens, except where this is an inevitable consequence of imprisonment, of the court's reason for ordering their detention and to ensure the good order of the prison.  Instructions or practices that limit their activities must provide only for the minimum restriction necessary in the interests of security, efficient administration, good order and discipline and for the welfare and safety of all prisoners."
11.	It can therefore be seen why there are very good reasons for affording a less rigorous regime to unconvicted and civil prisoners.  The only possible anomaly is those civil prisoners who are being actually punished as opposed to coerced.  But in such a case the judge who sentenced them will no doubt be aware that the regime to be endured will be less rigorous than that applicable to convicted prisoners and this will no doubt have informed the length of the sentence.  Put another way, if the judge thought that the contemnor would suffer the regime applicable to convicted prisoners, that might incline him to be more merciful in his sentence than would otherwise be the case.  
12.	On the other hand, a person in the position of the claimant is, in my opinion, in a totally different situation to unconvicted and civil prisoners.  He has been convicted of a very serious offence.  When released he will carry the badge of criminality until he dies.  When released he is liable to be recalled.  If he commits a further offence his prior offence will loom large when he is sentenced anew.  If he applies for certain kinds of employment he will have to disclose his prior offence.  He would be denied a visa to travel to some foreign countries, notably the USA.  His situation simply could not be more different to that applying to unconvicted and civil prisoners.  It truly is to compare chalk with cheese.
13.	In any event, some of the rights that the claimant argues should be afforded to him are simply impossible.  In effect he suggests that he should be accommodated with unconvicted and civil prisoners and kept apart from convicted prisoners.  This is almost fantastical and the fact that his leading counsel does not suggest that he should be allowed to vote demonstrates a core fallacy in her argument, in my respectful opinion.  If this were a seriously principled argument then why not nail the colours to the mast and demand the right for the claimant to vote also?  It is, I imagine, because of the acute controversy that attaches to that issue, namely voting rights for prisoners, that it has been quietly kicked into the long grass.
14.	The first legal question I have to decide is whether the claimant falls within Article 14 at all.  In R (on the application of RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311, at paragraph 5 Lord Walker stated:  
"The other point on which I would comment is the expression 'personal characteristics' used by the European Court of Human Rights in Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711, and repeated in some later cases. 'Personal characteristics' is not a precise expression and to my mind a binary approach to its meaning is unhelpful. 'Personal characteristics' are more like a series of concentric circles. The most personal characteristics are those which are innate, largely immutable, and closely connected with an individual’s personality: gender, sexual orientation, pigmentation of skin, hair and eyes, congenital disabilities. Nationality, language, religion and politics may be almost innate (depending on a person’s family circumstances at birth) or may be acquired (though some religions do not countenance either apostates or converts); but all are regarded as important to the development of an individual’s personality (they reflect, it might be said, important values protected by articles 8, 9 and 10 of the Convention). Other acquired characteristics are further out in the concentric circles; they are more concerned with what people do, or with what happens to them, than with who they are; but they may still come within article 14 (Lord Neuberger instances military status, residence or domicile, and past employment in the KGB). Like him, I would include homelessness as falling within that range, whether or not it is regarded as a matter of choice (it is often the culmination of a series of misfortunes that overwhelm an individual so that he or she can no longer cope). The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify. There is an illuminating discussion of these points (contrasting Strasbourg jurisprudence with the American approach to the Fourteenth Amendment) in the speech of Baroness Hale of Richmond in A L (Serbia) v Secretary of State for the Home Department [2008] UKHL 42, [2008] 1 WLR 1434, paras 20‑35." 
15.	Therefore, discrimination based on a core characteristic, or as the Americans put it, on a “suspect" ground, is likely to be beyond the pale and incapable of being justified.  Discrimination by reference to a more outlying factor will be more easy to justify.  
16.	It has been decided (perhaps surprisingly) by the European Court of Human Rights that being a prisoner per se does constitute another status for the purposes of Article 14: see Shelley v The United Kingdom [2008] 46 EHRR SE 16.  However, the same court has decided that the type of offence does not constitute another status within Article 14:  see Gerger v Turkey Application No 2491/94.  Further, the House of Lords in the decision of Clift v Secretary of State for Home Department [2007] 1 AC 484, decided that the length of a determinate sentence did not constitute another status within Article 14. In that case the prisoner being given a finite sentence of 18 years.  Had he been given a sentence of fewer than 15 years, the final say on his release would have rested with the Parole Board but, because his sentence was more than 15 years, the Home Secretary also had a veto.  His status as a prisoner serving 18 years was held by the House of Lords not to be a qualifying status for the purposes of Article 14.  It is true that later the Strasbourg Court disagreed with this but it is clearly established by authority that it is the House of Lords decision which is binding on me, notwithstanding the later European decision (a fact which perhaps should be more widely known by critics of the system).  
17.	It is argued by the claimant that his relevant status is that of being a convicted prisoner per se.  Leading counsel for the Secretary of State for Justice says this cannot possibly be right. The claimant's whole argument is based on him being a convicted prisoner serving a certain type of sentence.  Although this aspect is not entirely free from doubt, I agree with Mr Strachan QC.  On proper analysis the true ratio of the decision of the House of Lords in Clift is that the type of sentence cannot be a relevant status for the purposes of Article 14.  This is so whether the sentence type is of a finite term of years or whether it is an indeterminate sentence carrying with it the liability to be indefinitely detained in order to protect the public.  It is true that Lord Bingham in paragraph 28 stated: 
"I do not think that a personal characteristic can be defined by the differential treatment of which a person complains. But here Mr Clift does not complain of the sentence passed upon him, but of being denied a definitive Parole Board recommendation. Is his classification as a prisoner serving a determinate sentence of 15 years or more (but less than life) a personal characteristic? I find it difficult to apply so elusive a test. But I would incline to regard a life sentence as an acquired personal characteristic and a lifer as having an 'other status', and it is hard to see why the classification of Mr Clift, based on the length of his sentence and not the nature of his offences, should be differently regarded. I think, however, that a domestic court should hesitate to apply the Convention in a manner not, as I understand, explicitly or impliedly authorised by the Strasbourg jurisprudence, and I would accordingly, not without hesitation, resolve this question in favour of the Secretary of State and against Mr Clift." 
18.	This suggest a certain amount of equivocation as to whether the type of sentence that is the indeterminate (but potentially for life) sentence is “another status” under Article 14.  But having wavered it is clear to me that Lord Bingham concluded that it was not.  Lady Hale was in no doubt that it was not ‑ see paragraph 62 where she stated:  
"But a difference in treatment based on the seriousness of the offence would fall outside those grounds. The real reason for the distinction is not a personal characteristic of the offender but what the offender has done."   
Her opinion was adopted by Lord Bingham in paragraph 39 and his opinion was adopted by the other members of the Committee.  Therefore it seems to me, on analysis of the opinions, that the true ratio is precisely what Mr Strachan QC says it is.  
19.	Therefore my first conclusion is that Article 14 is not engaged on the facts of this case.  
20.	If I am wrong about this I have to consider whether there has in fact been discrimination.  A clear and short definition of what constitutes discrimination was given by Lord Hoffmann in the case of R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, at paragraph 14:  
"'Discrimination' means a failure to treat like cases alike.  There is obviously no discrimination when the cases are relevantly different. Indeed, it may be a breach of article 14 not to recognise the difference: see Thlimmenos v Greece (2001) 31 EHRR 411. There is discrimination only if the cases are not sufficiently different to justify the difference in treatment. The Strasbourg court sometimes expresses this by saying that the two cases must be in an 'analogous situation': see Van der Mussele v Belgium (1983) 6 EHRR 163, 179‑180, para 46." 
21.	I have already explained why the case of the claimant, on the one hand, and the case of an unconvicted or civil prisoner on the other hand are most certainly not alike ‑  indeed they could hardly be more different.  That opinion is based on my own view of rationality and common sense but it is supported by authority.  In Waite v London Borough of Hammersmith and Fulham & Anr [2002] EWCA Civ 482, the claimant had also been sentenced to be detained at Her Majesty's Pleasure, in that case for the murder of his grandmother when he was aged 16.  He had been released on licence but had been recalled.  During the period of his release he had been granted housing benefit to pay his rent.  On his recall that housing benefit was stopped.  It would not have been stopped if he had been a person accused of a crime who had been remanded in custody.  He claimed that he had been discriminated against under Article 14.  His claim was dismissed at first instance and his appeal was refused.  In his judgment Laws LJ stated at paragraph 30: 
"As it seems to me, this argument isolates a single procedural parallel between the role of the court and the role of the Parole Board, and to treat it as founding a similarity between the cases of the HMP detainee and the remand prisoner big enough to make an Article 14 case in the light of the differential treatment of those two classes for the purposes of housing benefit. I have to say that I consider the enterprise to be a failure. The HMP detainee has been convicted of murder. The remand prisoner has not been convicted of anything. He enjoys the presumption of innocence. Section 32(6) of the Crime (Sentences) Act 1997 indicates that the HMP detainee's liability to continue detention is or would be 'in pursuance of his sentence'. I quite accept that the HMP detainee can only lawfully be detained after tariff on distinct grounds of dangerousness and, in a case such as the present where there has been a release and a recall, the judge of his dangerousness is the Parole Board. This, in my view, does not touch the fact that the reason why such a detainee is subject to the regime of recall by the Secretary of State and later determination by the Parole Board, is the fact of his conviction and sentence for murder. The reason why the remand prisoner is subject to the regime of trial and possible court order by way of sentence is the fact of his having been accused of a crime. These two circumstances seem to me to set the two cases wholly apart."
22.	Miss Kaufmann QC seeks to finesse away to what my mind is a clear statement of principle by arguing that it should be confined to its bare facts and is applicable only to a case where a claim for housing benefit has been stopped.  Of course that kind of reasoning can lead to the subversion of every statement of principle.  In my view, Laws LJ was not seeking to confine his view only to the housing benefit class of case.  The differences that he identifies between a claimant in the position of the claimant there and the claimant in this case, on the one hand, and an unconvicted prisoner, on the other hand, is my mind of general application and is binding on me.
23.	I therefore conclude that there is no analogous comparator here and that this is not a case where like cases have been treated differently.  
24.	The further question is whether, if I am wrong on my first two conclusions, and that this is in fact a case where discrimination has occurred, whether such discrimination is "manifestly without reasonable foundation" (see Stec v United Kingdom [2006] 43 EHRR 47).  In the light of my clear conclusions on the first two points this question is now wholly hypothetical.  However, I do express the view that if this is in fact a case of discrimination, then it is by reference to a highly peripheral outlying factor where the extreme scrutiny demanded in relation to those factors closer to the centre does not apply.  It is impossible to say that even if there is differential treatment for like cases here, that it is manifestly without reasonable foundation.  Indeed, in some respects, the different treatment on a purely practical level is not only reasonable but necessary.
25.	For all these reasons the application for judicial review is dismissed.