Supreme Court Rules on Recall Practices for Different Types of Custodial Sentences Under ECHR

Introduction

The Supreme Court of the United Kingdom delivered a significant judgment in the matter of Stephen Hilland’s application for Judicial Review, which raised pertinent questions regarding the practices adopted for the recall to prison of prisoners serving different types of custodial sentences. At the heart of the case was the compatibility of these practices with Article 14 of the European Convention on Human Rights (ECHR), concerning non-discrimination, when read alongside Article 5 concerning the right to liberty and security.

Key Facts

Stephen Hilland, sentenced to two consecutive 12-month determinate custodial sentences (DCS), was automatically released on licence, only to be later recalled to prison. The grounds for recall were based on risk assessment practices that differed from those applied to prisoners serving indeterminate custodial sentences (ICS) or extended custodial sentences (ECS). Hilland contended that this constituted unjustifiable discrimination against DCS prisoners.

Lower courts upheld the distinction in treatment, prompting Hilland to appeal to the Supreme Court. Here, the justices meticulously dissected the finer points of the criminal justice system and the nuanced practices pertinent to the recall of prisoners, exploring whether such practices unjustifiably discriminated against Hilland, and by extension, against DCS prisoners.

Legal Principles

Analogous Situation

Central to the legal debate was the question of whether DCS prisoners found themselves in an “analogous or relevantly similar situation” to ICS and ECS prisoners for the purposes of Article 14 ECHR. The Supreme Court, following the European Court of Human Rights case law, underscored the non-necessity for the comparator groups to be identical but required them to be in significantly similar circumstances that warrant non-discriminatory treatment.

Objective Justification

Should a scenario of different treatment in analogous situations be established, the onus shifts to the government to demonstrate “objective and reasonable justification” for such discrimination. This involves articulating a “legitimate aim” and showing a “reasonable relationship of proportionality” between the means employed and the intended aim.

Margin of Appreciation

The authorities’ discretion, termed ‘margin of appreciation’, is significant in determining the appropriateness of different treatments among prisoner categories. This principle accounts for the varied nature of sentencing regimes and the need for differential applications in the public interest.

Outcomes

The Supreme Court held that DCS prisoners are not in an analogous situation to ICS and ECS prisoners. It pointed to the distinctive attributes of each sentencing regime, designed to address specific offender profiles and degrees of risks they present. The Court concluded that the disparity in treatment regarding the revocation of licences and recall to prison is justified within the holistic context of these sentencing frameworks.

The Supreme Court further reasoned that if Hilland’s argument prevailed, the recall practice tailored for higher-risk ICS and ECS prisoners—requiring a demonstrated risk of serious harm—would lead to an illogical outcome where the lower-risk DCS prisoners would seldom face recall since they typically do not pose such high risk.

Conclusion

In dismissing Hilland’s appeal, the Supreme Court reaffirmed the tailored nature of sentencing regimes and associated recall practices, emphasizing that differences therein align with the distinctiveness of the offence and offender risk profiles they cater to. The Court’s methodical approach clarified the symbiotic relationship between sentencing policies and recall practices, asserting that while the sentencing regimes differ, the underlying principles of justice, proportionality, and public protection remain steadfastly served.