Clift v United Kingdom  ECHR 1106 (13 July 2010)
In Clift v The United Kingdom, the European Court of Human Rights gave a broad reading to art 14 of the European Convention of Human Rights, finding that a person’s status as a particular class of prisoner could be a ground of discrimination under the Convention.
Clift had been serving a sentence of 18 years’ imprisonment. In accordance with the law at the time, he became eligible for release on parole in 2002, and entitled to release in 2005. In order to qualify for release on parole, prisoners serving determinate (fixed-term) sentences of more than 15 years’ imprisonment required the recommendation of the Parole Board and further approval by the Secretary of State. For prisoners serving a fixed-term sentence of less than 15 years, or prisoners serving an indeterminate (life) sentence, the further step of approval by the Secretary was not required.
Clift was denied release in 2002 by the Secretary, despite a positive recommendation by the Parole Board. He was later released on licence, but two years after his initial eligibility for release. Clift claimed that the Secretary’s decision to deny his release constituted discrimination on the ground of his status as a prisoner serving a sentence of 15 years or more. He argued that he was in an analogous position to fixed-term prisoners serving sentences of less than 15 years, but treated less favourably by the imposition of a more stringent requirement for release. He argued that the discrimination was objectively unjustifiable. He alleged that this violated art 14 of the Convention (which prohibits discrimination), considered in conjunction with art 5 (which protects the right to liberty and security of person).
Clift’s claim was unsuccessful before the Divisional Court, on appeal to the Court of Appeal, and before the House of Lords. Clift then appealed to the European Court of Human Rights.
The main issue before the Court was whether or not the alleged ground of discrimination – the applicant’s status as a certain class of prisoner – fell within the ambit of art 14. In particular, did the ground of ‘other status’ mentioned in art 14 extend to cover a status that was not ‘personal’ to the complainant but rather the result of a distinction made by law (between certain classes of prisoner) or because of the conduct of the complainant. The United Kingdom government argued that these characteristics were divorced from the ‘innate’ character of the individual, and therefore were not covered by the section. The applicant argued that in light of the purpose of the Convention to protect human rights, the words of art 14 should not be strictly construed.
The Court began by acknowledging that the alleged basis of discrimination did not expressly fall within the terms of art 14. However, they recognised that the grounds listed in art 14 were ‘illustrative and not exhaustive’. The Court accepted that some of the grounds specifically relate to ‘innate’ or ‘inherently personal’ characteristics. However, it was noted that in the past, the Court has accepted that the word ‘status’ has been given a broad reading and not restricted in this way. The decision in James and Others v the United Kingdom, 21 February 1986, in which the alleged ground of discrimination was a difference between large and small property owners, was mentioned, as was the decision in Engel and Others v the Netherlands, 8 June 1976, where the Court held that a distinction based on military rank could run counter to art 14. The Court concluded that the applicant, in being classified as a certain type of prisoner, did enjoy ‘other status’ for the purposes of Article 14.
In determining whether the applicant was in an ‘analogous position to other prisoners treated more favourably,’ a requirement under art 14, the Court said that the comparator need not be identical to the applicant; the fact that there were ‘differences’ between the groups did not preclude the application of art 14. As the same principles were used to assess the risk posed by long-term prisoners serving less than 15 years and long-term prisoners serving 15 years or more, the applicant was deemed to have been in the same circumstances as prisoners serving less than 15 years.
The Court then considered whether the applicant was treated less favourably without objective justification. They accepted that more stringent early release criteria might be justified with respect to some prisoners who may pose a higher risk to the public. However, they said that in this case, applying more stringent criteria to prisoners serving determinate sentences than those serving indeterminate life sentences (who might be thought to pose greater risks) appeared to ‘lack any objective justification.’ The Court also accepted that it may be legitimate to have a ‘cut off point’ at which more stringent requirements would be applied, such as fifteen years (in this case), but added this could only be justified if it ‘achieved the legitimate aim pursued.’ The Court concluded that it did not here.
The appeal was successful, and the applicant received non-pecuniary damages for the ‘feelings of frustration, uncertainty and anxiety’ suffered in the extra years of incarceration.
The Court’s decision sheds some light on the scope of art 14. In future cases, discrimination based upon categories of prisoner may fall foul of the Convention. The Court has clearly favoured a broad, non-exhaustive approach to art 14. However, while rejecting a narrow interpretation of ‘other status’ in art 14, and drawing analogies to earlier cases where the ‘other status’ of the complainant was not innate or personal, the Court does not seem to have provided any clear guidance as to how to determine whether a particular trait or ‘situation’ would be classified as ‘other status’. It seems that future cases will be interpreted broadly and by analogy with this and past cases.
Relevance to the Victorian Charter
Section 8 of the Victorian Charter recognises the right to ‘recognition and equality before the law’, including ‘effective protection against discrimination’. While the term ‘discrimination’ is defined under s 3 of the Charter by reference to discrimination on the basis of an attribute set out in s 6 of the Equal Opportunity Act 1995 (Vic), which does not recognise ‘other status’ as a protected attribute, this decision supports a broad and purposive approach to determining the scope and application of those attributes that are recognised and protected.
The decision is at http://www.bailii.org/eu/cases/ECHR/2010/1106.html.
Kelly Ruffin, Paralegal, Mallesons Stephen Jaques Human Rights Law Group