Introduction

The case of Hilland v Department of Justice [2021] NICA 68 was heard by the Court of Appeal in Northern Ireland on December 10, 2021. The appellant, Stephen Hilland, challenged the decision of the Department of Justice (DoJ) to recall him to custody after he had been released on licence. Hilland contended that his recall breached his human rights under Article 5 (Right to Liberty and Security) and Article 14 (Prohibition of Discrimination) of the European Convention on Human Rights (ECHR). Specifically, he argued that his treatment as a Determinate Custodial Sentence (DCS) prisoner was discriminatory compared to Indeterminate Custodial Sentence (ICS) and Extended Custodial Sentence (ECS) prisoners.

Summary of the Judgment

The Court of Appeal, delivering the judgment of Maguire LJ, Maguire LJ, and McFarland J, upheld the decision of the lower court, dismissing Hilland's appeal. The court held that Hilland, as a DCS prisoner, was not in an analogous situation to ICS and ECS prisoners. Consequently, the different treatment based on sentencing regimes did not amount to unlawful discrimination under Article 14 of the ECHR. The court further affirmed that the statutory provisions governing recall mechanisms served a legitimate aim of public protection and were proportionate.

Analysis

Precedents Cited

The judgment extensively referenced key cases to support its reasoning:

• R (Stott) v Secretary of State for Justice [2018] 3 WLR 1831: This Supreme Court case addressed whether DCS and ECS prisoners were in analogous situations. The majority held they were not, reinforcing the differentiation between sentencing regimes.
• Clift v United Kingdom: Discussed the application of Article 14 concerning prisoners, emphasizing that recall decisions fall within the ambit of Article 5 combined with Article 14.
• Re McLaughlin [2018] 1 WLR 4250: Provided guidance on the formulation of questions to determine discrimination under Article 14.
• SC, CB and 8 children v Secretary of State for Work and Pensions [2021] UKSC 26: Elaborated on the margin of appreciation and the judicial approach to Article 14 considerations.

Legal Reasoning

The court employed a structured approach to assess Hilland's claims, focusing on the following key aspects:

• Ambit of Article 14: Confirmed that the circumstances of recall fall within the ambit of Article 5 read with Article 14.
• Analogous Situation: Determined that DCS prisoners are not in analogous situations to ICS and ECS prisoners due to fundamentally different sentencing frameworks and objectives.
• Justification: Recognized the legitimate aim of protecting the public from serious harm and found that the differential treatment was proportionate and justified within the statutory framework.

The court emphasized that sentencing regimes under the Criminal Justice (Northern Ireland) Order 2008 are designed with distinct purposes—punishment and deterrence for DCS prisoners versus public protection for ICS and ECS prisoners. This fundamental distinction negates the claim of analogous treatment, thereby justifying the different recall criteria.

Impact

This judgment reinforces the principle that different sentencing regimes tailored to specific offender categories are permissible under the ECHR, provided they serve legitimate aims and are proportionate. It clarifies the boundaries of Article 14 in the context of criminal sentencing and recall processes, setting a precedent for future cases involving discrimination claims by prisoners.

Complex Concepts Simplified

Determinate Custodial Sentence (DCS)

A DCS is a fixed-term prison sentence where the duration is established at the time of sentencing. The prisoner is aware of the total length of the sentence and the subsequent licence period, which is the time they must serve in the community under supervision before the sentence concludes.

Indeterminate Custodial Sentence (ICS)

An ICS does not have a fixed end date. Instead, parole boards assess periodically whether the prisoner still poses a risk to the public, leading to potential release on licence, or continued detention.

Extended Custodial Sentence (ECS)

An ECS is a fixed-term sentence longer than standard determinate sentences, combined with an extended licence period. It is designed for offenders deemed to represent a higher risk to the public.

Article 14 of the ECHR

This article prohibits discrimination in the enjoyment of Convention rights. It requires that any differential treatment must be based on legitimate aims and be proportionate, meaning the means used must be suitable and not excessively infringe on rights.

Conclusion

The Court of Appeal in Hilland v Department of Justice [2021] NICA 68 decisively affirmed that Determinate Custodial Sentence prisoners are not in analogous positions to Indeterminate or Extended Custodial Sentence prisoners. The differentiated treatment under the Criminal Justice (Northern Ireland) Order 2008 is justified under Article 14 of the ECHR, as it serves the legitimate aim of public protection and is proportionate. This judgment underscores the judiciary's deference to legislative frameworks in criminal sentencing, provided they adhere to human rights standards.