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The Continuing Dialogue Between the Supreme Court and the European Court: Haney

The issue of whether or not the Supreme Court can or should refuse to follow a European Court decision had to be considered recently in the case of Haney. [1] The topic was review of imprisonment following conviction for an offence, which is permitted under Article 5 of the European Convention as long as the detention is lawful and not arbitrary.

The issue here was considering prison sentences which are indeterminate for the protection of the public. An indeterminate sentence includes a minimum term fixed by the judge and then there is the opportunity for release.

In the case of James,[2] the House of Lords had held that there was no breach of Article 5(1), unless there should be a lengthy period without effective review by the Parole Board. The prisoners who brought that case had complained about the lack of availability of courses to allow them to meet the conditions that would demonstrate they were sufficiently rehabilitated for the Parole Board to allow them to leave prison on licence. The House of Lords rejected this as amounting to arbitrary detention.

The European Court disagreed. [3]   It held that the lack of availability of the courses meant that, once the prisoners had served the minimum term, their indefinite detention was arbitrary.

The Supreme Court has now had to consider the European Court decision in James and decide whether or not to follow it: and it decided not to do so. In Haney, there were four prisoners whose minimum term had expired; and they were complaining that their progress towards release had been hindered by lack of relevant services.

The Supreme Court held that the decision of the European Court in James was unworkable in practice, because the lawfulness of detention would depend on the steps being taken to rehabilitate the offender at any one time and the resources available to a particular prison. These are far too uncertain and could lead to detention being unlawful and then being lawful again following their release.

However, the Supreme Court did hold that in the light of the European Court decision, the House of Lords in James was wrong to hold that the aim of a life or indefinite sentence did not include rehabilitation and so does include a duty to rehabilitate. But the Supreme Court held this was not part of whether or not the detention is arbitrary, under Article 5(1), but only a part of the duty to review detention. Thus it can be supervised through judicial review of the Parole Board but does not create an express duty to provide specific courses or facilities. The detention remains lawful and within Article 5 since it results from the conviction; and it prevents release before the Parole Board have concluded that release is safe. The prisoner can seek review of their detention and damages if there has been a failure to provide steps towards rehabilitation, and damages were awarded to two of the prisoners in the appeal in Haney itself.

As well as being important on the substantive matter of Article 5, this is also a very important case about the obligation in s.2 of the Act on the courts to ‘take into account’ the jurisprudence of the European Court. In analysing whether or not to follow the European Court in James, the Supreme Court considered very carefully the obligation on it to take this case into account. The Court recognised that it is not always possible simply to reflect European Court jurisprudence; it may have to decide a point which has not been decided by the European Court; or it may decide that a European Court case cannot be supported and decline to follow it, following dicta in Pinnock[4] and Chester,[5] but noting that the domestic court would have to be very satisfied that the European Court’s approach was flawed in some way.

In declining to follow the European Court in James, the Supreme Court considered that the reasoning in James was out of line with other European Court decisions as well as being not practicable (as discussed above). Thus, it held that it should not follow the European Court decision. This sets a clear signal both that our courts will decline to follow a European Court case if they consider that they should do so, but also of the high threshold for doing so. It is also relevant that the Supreme Court did not ignore the European Court case – they did regard the House of Lords decision in James as incorrect in light of it – but they did depart from the analysis of the European Court on Article 5.

The Supreme Court in Haney also had to consider another case which had been decided by the European Court, the case of Clift. The House of Lords[6] had held that early release provisions which differentiated between those who were of foreign nationality and those of UK nationality were in breach of Article 5, taken with Article 14, and made a declaration of incompatibility, but held that whether or not the minimum period of the sentence, that determined by the Judge, had expired was not a relevant factor. The European Court[7] had confirmed that there was a violation and held that whether or not the minimum period had expired was also a factor which could result in discrimination in breach of Article 14 and that there had been an unjustifiable distinction drawn between different types of offenders. In Haney, the Supreme Court noted that this may well mean that whether offenders’ minimum period has expired might be a relevant difference in status for Article 14, ie that this aspect of Clift in the House of Lords should be reviewed. However, in the case being considered (in fact the appeal of Mr Kaiyam), the Supreme Court held that any difference in treatment was entirely justified and so there was no discrimination in breach of Article 14.

[1] R (Haney) v Secretary of State for Justice [2014] UKSC 66, [2015] 2 WLR 76

[2] Secretary of State for Justice v James [2009] UKHL 22, [2010] 1 AC 553

[3] James v United Kingdom (2012) (apps 25119/09, 57715/09 and 57877/09)

[4] Manchester City Corporation v Pinnock [2010] UKSC 45, [2011] 2 AC 104

[5] R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271

[6] Clift v Home Secretary [2006] UKHL 54, (2007) 1 AC 484

[7] Clift v United Kingdom [2013] (app 7205/07)

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