The House of Lords made a declaration that Sections 46 (1) and 50 (2) of the Criminal Justice Act 1991 which excluded the power of the Parole Board to recommend early release of prisoners subject to deportation orders, leaving the matter at the discretion of the Secretary of State, were incompatible with articles 5 and 14 of the European Convention on Human Rights. In REGINA (CLIFT) and REGINA (HINDAWI and ANOTHER) –V- SECRETARY OF STATE FOR THE HOME DEPARTMENT reported in The Times 21st December 2006, the appellant’s had sought judicial review on the ground that the decision by the Secretary of State not to order release from prison was contrary to Articles 5 and 14 in that the appellants were treated differently from long-term prisoners who were not subject to deportation and who were entitled to a benefit of a referral to the Parole Board.
Lord Bingham stated that, while the convention did not require member states to establish a scheme for early release of prisoners, nevertheless, where domestic law did provide for such a right, then this clearly fell within the ambit of Article 5 and differential treatment of one prisoner as compared with another, otherwise than on the merits of their respective cases, gave rise to an issue under Article 14.
The assessment of risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task with no political content and one to which the Secretary of State could not, and did not claim to, bring any superior expertise. Likewise, the differential treatment of determinate sentence prisoners liable to removal was, given that the Parole Board was able to assess the risk without any suggestion of difficulty, an indefensible anomaly.
Lord Hope delivered a concurring speech.
The case is somewhat academic because legislative changes had transferred the setting of tariffs from the secretary of state to the judiciary from 2003 but this case nevertheless demonstrates the relationship between UK legislation and ECHR.