Stott, R (on the application of) v Secretary of State for Justice

Factual and Procedural Background

The Appellant was convicted of 20 serious sexual offences, including the rape of a child. On 23 May 2013 the sentencing court imposed an Extended Determinate Sentence (EDS) under section 226A of the Criminal Justice Act 2003. The court fixed an “appropriate custodial term” of 21 years and an “extension period” of four years on licence.

Under section 246A of the same Act an EDS prisoner may only seek parole after serving two-thirds of the custodial term (14 years in the Appellant’s case). By contrast, most other prisoners may seek parole, or are automatically released, at the halfway point of their custodial term.

The Appellant began judicial review proceedings alleging that section 246A discriminates against EDS prisoners and violates article 14 (non-discrimination) read with article 5 (liberty) of the European Convention on Human Rights (ECHR). A Divisional Court dismissed the claim in February 2017 but certified a “leap-frog” appeal. The Supreme Court granted permission and heard the appeal.

Legal Issues Presented

1. Whether the Appellant’s differential treatment is on the ground of an “other status” within the meaning of article 14 ECHR (the status issue).
2. If so, whether EDS prisoners are in an analogous position to prisoners serving (a) indeterminate sentences or (b) other determinate sentences and, if so, whether the difference in their early-release regime is objectively justified.

Arguments of the Parties

Appellant's Arguments

• The EDS confers an “other status” because it is a distinctive sentencing regime with legal consequences; therefore article 14 is engaged.
• EDS prisoners are in an analogous situation to (i) determinate-sentence prisoners and (ii) discretionary life prisoners, all of whom depend on the Parole Board’s risk assessment for release.
• Making EDS prisoners wait two-thirds of their term before parole consideration lacks objective justification: public protection is already secured by the Parole Board’s risk test; life prisoners who are usually more dangerous may apply earlier.

Secretary of State's Arguments

• Any difference in treatment is not based on “status” but on sentence length and statutory regime; Clift (HL) remains binding.
• Even if article 14 is engaged, EDS prisoners are not in an analogous position: the EDS is a bespoke sentence for offenders who have committed serious offences and been judicially assessed as dangerous.
• The two-thirds requirement pursues legitimate aims—public protection and public confidence—and is proportionate given the higher assessed risk and the guaranteed release date at the end of the custodial term.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority (Lady Black, Lord Carnwath & Lord Hodge, joined by Lord Justice):

• Status: An EDS prisoner does possess an “other status” because the sentencing regime is a distinctive legal position; the House of Lords decision in Clift (HL) should no longer be followed.
• Analogy: When viewed holistically, EDS prisoners are not in a truly analogous situation to standard determinate or life prisoners; each sentencing regime is a self-contained package with its own risk-management features.
• Justification: Even if analogy existed, the two-thirds rule pursues legitimate aims—public protection and public confidence—and is proportionate because (a) EDS offenders have been judicially assessed as dangerous, (b) they have a guaranteed release date, unlike life prisoners, and (c) the extension-period licence offers additional safeguards.
• Accordingly, section 246A is compatible with article 14 read with article 5.

Dissent (Lady Hale & Lord Mance):

• EDS prisoners, life prisoners and ordinary determinate-sentence prisoners are in a relevantly similar position regarding the core right to liberty.
• Requiring EDS prisoners to serve two-thirds before parole consideration, while life prisoners (often more dangerous) may apply at the halfway point of their notional term, lacks rational justification.
• The statutory distinction therefore constitutes unjustified discrimination; a declaration of incompatibility should have been made.

Holding and Implications

Final Decision: APPEAL DISMISSED by a majority. No declaration of incompatibility was issued; section 246A of the Criminal Justice Act 2003 remains in force.

Implications: EDS prisoners must continue to serve two-thirds of their custodial term before becoming eligible to seek parole. The ruling preserves the legislative distinction between EDS offenders and other prisoner categories. The strong minority dissent signals potential for future legislative review or further challenges but does not create new precedent altering early-release law.