Hilland v Rev1 [2024] UKSC 4: Upholding Differentiated Treatment of DCS and ICS/ECS Prisoners under ECHR Article 14

Introduction

The case of Hilland v Rev1 [2024] UKSC 4 presents a pivotal examination of the practices employed by the Offender Recall Unit (ORU) of the Department of Justice in revoking a prisoner's licence and recalling them to prison. The appellant, Stephen Hilland, a prisoner serving a Determinate Custodial Sentence (DCS), challenged the differential treatment he received compared to prisoners serving Indeterminate Custodial Sentences (ICS) or Extended Custodial Sentences (ECS). Hilland contended that this disparity constituted unjustifiable discrimination under Article 14 of the European Convention on Human Rights (ECHR), read in conjunction with Article 5. This commentary delves into the Supreme Court's analysis, the legal reasoning underpinning the decision, and its broader implications for custodial sentencing regimes.

Summary of the Judgment

The United Kingdom Supreme Court, led by Lord Stephens and supported by four other justices, dismissed Hilland's appeal. The core issue revolved around whether the ORU's practice of assessing DCS prisoners for recall based on a risk of harm, as opposed to a more stringent risk of serious harm assessed for ICS and ECS prisoners, constituted discriminatory treatment under ECHR Article 14 in conjunction with Article 5. The Court upheld the lower courts' decisions, agreeing that DCS, ICS, and ECS prisoners are not in analogous situations and that the differential treatment was objectively justified. The Court emphasized the distinct sentencing regimes applicable to each category of prisoner and affirmed that the varied practices align with the legitimate aims of public protection, prevention of re-offending, and rehabilitation.

Analysis

Precedents Cited

The judgment extensively referenced the leading case R (Stott) v Secretary of State for Justice [2018] UKSC 59, which addressed similar issues of differential treatment among sentence categories under ECHR Article 14. In Stott v UK, both the Supreme Court and the European Court of Human Rights (ECtHR) concluded that prisoners serving Extended Determinate Sentences (EDS) were not in analogous situations to those serving determinate or discretionary life sentences, thereby justifying the differential treatment. Additionally, the Court engaged with the ECtHR's guidance on Article 14, particularly referencing cases like Molla Sali v Greece and Clift v United Kingdom, which elucidate the principles governing discrimination claims under the ECHR.

Legal Reasoning

The Supreme Court's legal reasoning hinged on two primary elements: the determination of analogous situations and the objective justification for any differential treatment. Firstly, the Court analyzed whether DCS prisoners like Hilland were in comparable circumstances to ICS and ECS prisoners. It concluded that due to the inherent differences in sentencing regimes—where DCS prisoners are automatically released on licence while ICS/ECS prisoners' release depends on risk assessments—their situations are not analogous.

Secondly, even if an analogous situation were established, the Court would need to assess whether the differential treatment was objectively justified. Applying the principles from ECHR jurisprudence, the Court found that the Department of Justice's practices align with legitimate aims, such as enhancing public safety and preventing re-offending. The distinct tests for revocation and recall—based on risk of harm for DCS and risk of serious harm for ICS/ECS—are proportionate measures tailored to the respective risk profiles of the prisoners.

Impact

The Supreme Court's decision reinforces the legitimacy of differentiated sentencing regimes in addressing varying levels of offender risk. It upholds the authority of national courts and sentencing bodies to tailor detention and supervision practices to better protect the public and rehabilitate offenders based on their individual risk assessments. This case sets a precedent affirming that as long as differential treatment is grounded in legitimate, proportionate aims and aligns with the specific characteristics of sentencing regimes, it does not constitute unjustifiable discrimination under the ECHR.

Furthermore, the judgment clarifies the application of Article 14 in conjunction with Article 5, emphasizing the necessity of holistic examination of sentencing packages rather than isolated provisions. This approach may influence future challenges to sentencing practices, providing a framework for assessing discrimination claims based on the overarching structure and objectives of sentencing regimes.

Complex Concepts Simplified

Determinate vs. Indeterminate Custodial Sentences

Determinate Custodial Sentence (DCS): A fixed-term imprisonment where the prisoner is released on licence after serving a specified period, typically half of the sentence. For Hilland, the DCS meant automatic release unless recalled based on a lower threshold of risk (harm vs. serious harm).

Indeterminate Custodial Sentence (ICS) and Extended Custodial Sentence (ECS): These involve imprisonment with the possibility of release based on ongoing risk assessments by the Parole Commissioners. ICS/ECS prisoners are subject to stricter criteria for recall, focusing on serious harm, reflecting their higher risk profiles.

Article 14 ECHR in Conjunction with Article 5

Article 5: Protects the right to liberty and security, stipulating lawful detention and mechanisms for challenging unlawful detention.

Article 14: Prohibits discrimination in the enjoyment of Convention rights on various grounds, including "other status."

When combined, Article 14 ensures that any limitation or deprivation of rights under Article 5 must not be discriminatory unless justified.

Analogous Situations and Objective Justification

Analogous Situations: Circumstances where individuals or groups are similarly situated and thus warrant similar treatment under the law.

Objective Justification: The requirement that any differential treatment must pursue a legitimate aim and that the means of achieving this aim are proportionate and reasonable.

Conclusion

The Supreme Court's decision in Hilland v Rev1 reaffirms the validity of tailored sentencing regimes designed to address varying levels of offender risk and safeguard public safety. By maintaining the differentiated treatment between DCS prisoners and their ICS/ECS counterparts, the Court underscores the importance of proportionality and justification in custodial practices. This judgment serves as a critical reference point for future cases involving discrimination claims under the ECHR, emphasizing that as long as differential treatment aligns with legitimate aims and the specific context of sentencing regimes, it remains consistent with human rights obligations.