CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 31 octobre 2023

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THE UNITED KINGDOM (Application no. 26104/19)   JUDGMENT   Art 14 (+ Art 5) • Discrimination • Other status • Difference in treatment in early release eligibility between the applicant, a prisoner serving an extended determinate prison sentence (EDS), vis-à-vis standard determinate sentence prisoners and discretionary life sentence prisoners • Case concerned early release eligibility which may legitimately depend on policy as well as factual considerations and not, as Clift v. the United Kingdom , the purely factual assessment of the actual risk posed by the prisoner • Criteria for determining eligibility for early release are not, or should not be, in principle the same for all categories of prisoner • Seriousness of offending and degree of dangerousness plainly relevant to considerations of early release eligibility • Prisoners sentenced to an EDS not sufficiently similar to prisoners under the different sentencing regimes who may present different degrees of offending and dangerousness • Legitimate aim pursued by different sentencing regimes, of which early release provisions formed part, to cater for different combinations of offending and risk in appropriate ways • Difference of treatment objectively justified • Impugned legislative measures proportionate and not outside wide margin of appreciation enjoyed by Contracting States in matters of prisoners and penal policy   STRASBOURG 31 October 2023 FINAL   31/01/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Stott v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Gabriele Kucsko-Stadlmayer , President ,   Tim Eicke,   Faris Vehabović,   Armen Harutyunyan,   Anja Seibert-Fohr,   Ana Maria Guerra Martins,   Sebastian Răduleţu , judges , and Andrea Tamietti, Section Registrar, Having regard to: the application (no.   26104/19) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Frank Stott (“the applicant”), on 7 May 2019; the decision to give notice to the United Kingdom Government (“the Government”) of the application; the parties’ observations; Having deliberated in private on 10 October 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant complains that the early release provisions applicable in his case are discriminatory and in breach of Article 14, taken together with Article 5 of the Convention. THE FACTS 2.     The applicant was born in 1968 and is detained in HMP Full Sutton, York. He was granted legal aid and was represented by Mr M. Purdon, a solicitor practising in Newcastle-upon-Tyne. 3.     The Government were represented by their Agent, Mr M. Boulton, of the Foreign, Commonwealth and Development Office. 4.     The facts of the case may be summarised as follows. THE BACKGROUND FACTS 5.     On 3 May 2013 the applicant was convicted of various sexual offences, including eleven counts of rape of a child under thirteen. He had previously pleaded guilty to other offences. 6.     On 24 May 2013, the Crown Court sentenced him to an extended determinate sentence (“EDS”) under section 226A of the Criminal Justice Act 2003 (“the 2003 Act” – see paragraphs 40-44 below). The sentence comprised a custodial term of twenty-one years’ imprisonment and an extended licence period of four years. 7.     The Court of Appeal subsequently refused the applicant permission to appeal against his sentence. 8.     Pursuant to the applicable early release provisions, the applicant will become eligible for parole once he has served two-thirds of his custodial term (see paragraph 44 below). The Parole Board will be able to direct his release after this point and before the expiry of the custodial term if it is satisfied that the imprisonment of the applicant is no longer necessary for the protection of the public. THE DOMESTIC PROCEEDINGS Proceedings before the Administrative Court 9.     The applicant brought judicial review proceedings challenging the applicable early release provisions. He argued that had a discretionary life sentence been imposed, he would have been eligible for parole at an earlier point. He therefore contended that the relevant provisions were discriminatory and in breach of his rights under Article 14 of the Convention, in conjunction with Article 5. 10 .     The judgment of the Administrative Court was delivered on 15   February 2017. The court found that it was constrained by an earlier judgment of the House of Lords ( R (Clift) v. Secretary of State for the Home Department [2006] UKHL 54), to find against the applicant on the issue of whether he enjoyed “other status” (see this Court’s subsequent judgment in Clift v. the United Kingdom , no. 7205/07, §§ 15-21, 13 July 2010). It therefore rejected the applicant ’s submission that his differential treatment was on the ground of “other status” for the purposes of Article 14. However, recognising that the applicant might be successful in reversing the House of Lords ruling in R (Clift) in light of this Court’s subsequent judgment in that case, the court went on to examine whether the applicant could be considered to be in an analogous position to other relevant prisoners and whether there was justification for the differential treatment of EDS prisoners. 11 .     It found that the argument of the Secretary of State as to the substantive differences between an EDS and a life sentence “ignores the principle of sentencing practice ... that both sentences involve a period identified for punishment and deterrence and, potentially, further detention (albeit in the case of an EDS for a finite time) based on risk to the public”. The court continued: “44.     ... Both must accept the period for punishment and then address the issue of risk; what is at issue is the question of eligibility for consideration for release not merely the mechanism whereby issues of release are decided.” 12 .     It further compared the position of EDS prisoners with prisoners serving determinate sentences and sentences for offenders of particular concern (“SOPC” – see paragraphs 45-47 below). It explained: “45.     The position is underlined by a consideration of determinate sentences alone. Take the case of a crime which, applying the relevant guideline, justifies a sentence of 12 years’ imprisonment. For an offender in respect of whom there is no concern that he is a risk to the public, that will be the determinate term: as the law stands, he will serve six years and then be entitled to be released on licence (from which he can be recalled to prison for breach up to the end of the 12-year term). For another offender, deserving the same sentence but who, perhaps by reason of his mental condition, constitutes a risk to the public, the court might take the view that he requires an extended period on licence. If he was sentenced to an EDS with a custodial term of 12 years (i.e. the same as the first offender, their crimes being of equal gravity) with a two-year extension (for the purposes of extending supervision over him), he would only be eligible for consideration of parole after 8 years. The gravity of their crimes is identical and their positions (in so far as punishment and deterrence is concerned) seem, to me at least, to be analogous ... 46.     Quite apart from these examples, an EDS in this case is clearly analogous to the sentence for which provision is made in the newly inserted s. 236A of the 2003 Act [the SOPC]. An offender given a special custodial sentence for offenders of particular concern may well have committed precisely the same offences as that committed by this offender, and yet will be eligible for release after one half of the determinate term: see s. 244A ...” 13 .     As to whether there was objective justification, the court noted the Secretary of State’s argument that the justification for the EDS was that the offender had committed serious offences and had been found to be dangerous. It continued: “48.     Neither the evidence nor the explanation addresses the crucial issue of the distinction between the punitive element of any sentence and that part of the sentence designed to cater for risk. The fact that those eligible for EDS have committed serious offences does not provide any rational basis to alter the extent of the punitive element of a sentence. The offender, who is made the subject of a [SOPC], will have committed a very serious offence as will many offenders who are subject to determinate terms (for whom the dangerousness provisions will not be triggered because of the length of the determinate sentence). All are eligible for release ... at the expiry of one half of the custodial term. Similarly, the calculation of the minimum term to be served by those sentenced to discretionary life sentences will usually be one half of the determinate term that would otherwise have been appropriate. Those offenders will be released at the half way point of the custodial term. Furthermore, the sentence which EDS was intended to replace, imprisonment for public protection, itself involved the setting of a minimum term based on half the notional determinate term. 49.     As for the argument that the dangerousness of the offender sentenced to EDS itself constitutes justification for the different release provision, that is to confuse punishment and deterrence with risk. Dangerousness under ... the 2003 Act is assessed by reference to future risk, and it is only at the point of potential release that the risk will be assessed ... If relevant risk to the public remains, the offender will remain in prison. If not, it will be appropriate to release him. There is no rational justification for setting a later and arbitrary point for parole eligibility (at which risk is to be assessed) for EDS prisoners, as opposed to life sentence prisoners, or prisoners serving a [SOPC].” 14 .     The court concluded that the difference in treatment consequent upon risk between those sentenced to determinate sentences and those sentenced to EDS, SOPC or discretionary life sentences was entirely justified for the purpose of protecting the public. However, the difference in the term to be served for punishment and deterrence was not. Had it not been for the binding precedent of R (Clift) (see paragraph 10 above), the court would have made a declaration that the early release provisions relating to EDS prisoners were incompatible with Article 14 of the Convention. Proceedings before the Supreme Court 15 .     The Supreme Court granted the applicant permission to appeal. On 28   November 2018, it dismissed the applicant’s appeal by a majority of three justices, with Lady Hale and Lord Mance dissenting. 16 .     The leading judgment for the majority was given by Lady Black. Taking into account the Court’s judgment in Clift (cited above), she concluded that the difference in the treatment of EDS prisoners in relation to early release was a difference within the scope of Article 14, being on the ground of “other status”. 17.     As regards the question whether the applicant was in an analogous situation to life or standard determinate sentence prisoners, Lady Black began by addressing the question whether determinate sentences – like life sentences – could be said to compromise two separate components, namely a period for punishment and deterrence and a further period based on risk. She considered that the Secretary of State was correct to differentiate between determinate and indeterminate sentences in this connection. She said: “133.     Having reviewed the authorities, it seems to me fairly clear that the Strasbourg jurisprudence is against the two component analysis, so far as determinate sentences are concerned. Viewing the whole term as punitive would also be consistent with the generally applicable purposes of sentencing set out in section 142(1) of the 2003 Act [see paragraphs 31-32 below], and with the embargo on the sentencing judge having regard to the early release provisions when deciding what period of imprisonment to impose, save in particular defined circumstances.” 18.     That said, she accepted that as a matter of practice domestic criminal   courts did see determinate sentences as having distinct punitive and risk-based elements. Even if it were correct that a sentence should not actually be analysed in this way, it remained the “stark fact” that some prisoners had to serve a greater proportion of their overall sentence before becoming eligible for release on licence than others. Notably, EDS prisoners had to serve a greater proportion of their sentence than others before they could try to persuade the Parole Board that they no longer posed a risk. She continued: “135.     ... Whatever the correct answer to the two component debate, this differential wait for the chance to approach the Parole Board demands attention ...” 19 .     She considered, however, that it was important to put the differential wait argument into proper context. Although the assertion that the requirement for an EDS prisoner to serve two-thirds of his sentence before becoming eligible for parole was out of step with comparable prisoners had “an initial attraction”, it was, she said, less compelling if the rest of the prisoners were not, in fact, in step with each other. She explained: “136.     ... The argument proceeds on the basis that other prisoners are eligible for release/parole at the half-way point in their sentence, but on closer examination, it can be seen that this is by no means universal. Standard determinate sentence prisoners are entitled to (automatic) release at the half-way point. Most life sentence prisoners (excepting those where a whole life term has been imposed) are eligible to apply for release once they have served their minimum term, and in most cases this minimum term will be the equivalent to half of the notional determinate term, but that is not universal even for discretionary life sentences .... Accordingly there are other prisoners who serve longer than half of their sentences before they have a chance of release on licence. Conversely, there are some prisoners who serve less than half. Home Detention Curfew can enable determinate sentence prisoners to achieve their release before the half-way point, and an SOPC prisoner is eligible to apply for release from the half-way point of his appropriate custodial term, and not the half-way point in his overall sentence (which will be the aggregate of the custodial term plus the licence tacked on to it).” 20 .     Lady Black considered it important to recognise “the complexity and detail of the provisions governing the various sentences that can be imposed”. She explained that “far from there being a basic sentencing regime, with discrete variations for particular sentences, each sentence has its own detailed set of rules dictating when it can be imposed and how it operates in practice, the early release provisions being part and parcel of the rules”. Some sentences could only be imposed if there was a significant risk of the offender causing serious harm to members of the public by committing further offences; some sentences could only be imposed where the offender had already committed offences of a particular type. For some sentences, there was automatic early release on licence; for others, release on licence was dependent on the Parole Board. Those serving indeterminate terms remained on licence and thus liable to be recalled to prison for the rest of their lives; whereas other offenders would be on licence for a finite period only. She continued: “145.     ... All of this fine detail tends to support the Secretary of State’s argument that each sentence is tailored to a particular category of offender, addressing a particular combination of offending and risk. Subject of course to sentencing guidance, the judge selects the sentence which matches the attributes of the case before him, and fixes the term of any period of imprisonment, extended licence etc. I can therefore see the force in the argument that the release provisions about which Mr Stott complains should not be looked at on their own, but as a feature of the regime under which he has been sentenced, the same regime that is sufficiently distinct to justify taking the view that his complaint is on the ground of ‘other status’. There might be said, therefore, to be a building case for holding that he is not in an analogous situation to others sentenced under different regimes. 146.     Weight is added to this when some of the detail of the EDS regime is compared specifically with other sentences. Of the determinate sentences, only an EDS requires a finding of significant risk to members of the public of serious harm. The Secretary of State points out that, in contrast to EDS prisoners, not all discretionary life sentence prisoners have been found to be dangerous, such a finding not being required for the imposition of life sentences under section 224A [see paragraphs 52-54 below]. That submission, whilst literally correct, is significantly weakened when one considers the nature of the listed offences which are a pre-requisite to the imposition of such a life sentence ... 147.     There are important differences between an EDS and a discretionary life sentence, however. There are respects in which a discretionary life sentence must undoubtedly be viewed as having more serious consequences for the offender, notwithstanding that he may have an earlier opportunity to approach the Parole Board. An EDS involves imprisonment for a specified period which will necessarily come to an end, whether or not the prisoner’s release is directed by the Parole Board, but a prisoner serving a discretionary life sentence may remain in detention for the rest of his life. If he is released, he remains on licence (and liable to recall) for life, whereas the EDS prisoner is on licence for a finite period only.” 21 .     Recognising that there were valid arguments both ways as to whether the groups could be considered analogous, she turned to consider whether the differential treatment had a legitimate aim and whether the method chosen to achieve the aim was appropriate and not disproportionate in its adverse impact. She took the view that the applicant’s comparison of EDS prisoners with those serving determinate terms was “less persuasive” than was the comparison with indeterminate sentence prisoners. She observed that the Secretary of State’s “fundamental answer” to the claim was that there were different categories of sentence, tailored to the particular characteristics of the offenders and striking a balance between the interests of public protection and the interests of the individual prisoner. In the view of the Secretary of State, all EDS prisoners were dangerous and the legitimate aim was to protect the public by ensuring that they served a greater proportion of their custodial term than other categories of prisoners. She noted: “150.     ... This is comprehensible when the position of an EDS prisoner is compared with a standard determinate term prisoner, in relation to whom there is no equivalent requirement to find specifically that there is a significant risk of serious harm to the public through further specified offences. It works less easily in relation to indeterminate sentences. True it is that there is not a universal requirement for a finding of dangerousness, before the imposition of an indeterminate sentence, but, as I implied earlier, it is not a great leap from the conditions that have to be satisfied before the sentence can be passed to the conclusion that by far the majority of indeterminate sentence prisoners will pose a risk to the public. Nevertheless ..., in contrast to the release provisions in relation to an EDS, the release provisions in relation to indeterminate sentences must cater for prisoners who are not dangerous, and might be suitable for release sooner. Moreover, [counsel for the Secretary of State] invites us to consider each sentence as a whole, when considering justification, because it is artificial to compare release provisions only. Of crucial importance is the fact that the indeterminate sentence prisoner may never be released at all, whereas the EDS prisoner will be released at the end of his custodial term, even if he fails to satisfy the Parole   Board on the question of risk, and also the difference in the duration of the licence in each case.” 22.     Lady Black accepted that, in general terms, the aim of the EDS provisions was legitimate. The more difficult questions were whether the longer wait before the prisoner was eligible to apply to the Parole Board was an appropriate means of achieving this aim and whether it was disproportionate in its impact. She explained: “153.     ... The starting point for a determination of these questions is that the ECtHR would allow a Contracting State a margin of appreciation in assessing whether, and to what extent, differences in otherwise similar situations justify different treatment, and would allow a wide margin when it comes to questions of prisoner and penal policy, although closely scrutinising the situation where the complaint is in the ambit of article   5. This court must equally respect the policy choices of parliament in relation to sentencing.” 23 .     She was ultimately persuaded that the proper way to look at the issue was by considering each sentence as a whole. The sentencing judge imposed the sentence that complied with the statutory conditions prescribed by Parliament and the sentencing guidelines and, within that framework, best met the characteristics of the offence and the offender. The early release provisions were to be seen as part of the chosen sentencing regime. Lady   Black considered that there was a “readier comparison” between an EDS and an indeterminate sentence than between a standard determinate term sentence and an EDS, but observed that they were “by no means a complete match”, leaving aside the differences in parole eligibility. She continued: “155.     ... Counter-balancing the indeterminate prisoner’s earlier eligibility for parole is the lack of any guaranteed end to his incarceration, and the life licence to which he is subjected. This fundamentally undermines the argument that the difference in treatment between the two prisoners in relation to early release is disproportionate, or putting it more plainly, unfair. I would accept that, on the contrary, bearing in mind the EDS sentencing package as a whole, the early release provisions are justified as a proportionate means of achieving the government’s legitimate aim ...” 24.     She concluded that while the applicant had been treated differently on the grounds of “other status”, there was an objective justification for the difference in treatment of EDS prisoners and his claim failed. That being the case, it was not necessary to give a definitive answer as to whether EDS prisoners could be said to be in an analogous situation to other prisoners (see paragraph 21 above). However, she concluded that having looked at the matters again in the context of justification, and considered the complete picture, she had come to the view that EDS prisoners could not be said to be in an analogous situation to other prisoners. She said: “155.     ... Most influential in this conclusion is that, as I see it, rather than focusing entirely upon the early release provisions, the various sentencing regimes have to be viewed as whole entities, each with its own particular, different, mix of ingredients, designed for a particular set of circumstances.” 25 .     Lord Carnwath and Lord Hodge agreed that the appeal should be dismissed. Lord Carnwath took the view that the applicant did not have “other status”. On the remaining questions, he agreed with the reasons given by Lady   Black and Lord Hodge. Lord Hodge accepted that the applicant had “other status” but considered that he was not in an analogous situation to prisoners sentenced under a different sentencing regime and, for the same reasons, that any difference in treatment was justified. He noted in particular: “193.     When assessing whether Mr Stott is in an analogous situation to other prisoners it is important to have regard to the reality that in England and Wales there are separate sentencing regimes which have different characteristics. It is appropriate to take a holistic approach to each sentencing regime in deciding whether or not one regime is analogous to another. Not all prisoners serving a discretionary life sentence will be more dangerous than a prisoner serving an EDS. There are prisoners who are serving a life sentence under section 224A of the 2003 Act [see paragraphs 52-54 below], which does not require a finding that the offender was dangerous, although it is likely that in most cases he will be ... A prisoner serving an EDS is not eligible for release at the direction of the Parole Board at one half of his custodial term while a prisoner serving a discretionary life sentence is generally so eligible ... But that is far from the whole picture ... [A] life prisoner might have to wait for many years after his minimum term has expired before the Parole Board consider it safe to release him. By contrast, a prisoner serving an EDS is entitled to be released at the end of the custodial period without any further assessment of risk (section 246A(7)). Similarly, a person who has been given a life sentence remains on licence and subject to recall to prison for the rest of his life. By contrast, the licence provisions imposed on a person serving an EDS end on the expiry of the specified extension period (section 226A(5) and (8)).” 26 .     Lady Hale, dissenting, considered that the real question in the case was whether the difference in treatment could be justified as a proportionate means of achieving a legitimate aim. Protecting the public was undoubtedly a legitimate aim. As for proportionality, she expressed her view as follows: “216.     ... The public will be better protected if [an EDS prisoner] is required to serve more of his sentence in prison and can only be released during the rest of his custodial term if the Parole Board determines that this will be safe. The criterion for imposing the sentence would therefore appear to justify the difference in treatment between an EDS prisoner and a prisoner serving a standard determinate term, even though their actual offences may be commensurate. 217.     The same could be said of offenders serving a special custodial sentence for ‘certain offenders of particular concern’ (Criminal Justice Act 2003, section 236A). Here the criterion is not the dangerousness of the particular offender, but the dangerousness of the offence which he has committed ... These prisoners may be let out at half time, but only if the Parole Board decides that this will be safe. These prisoners have not been held to be dangerous in themselves in the same way that prisoners sentenced to an EDS have been held to be dangerous. Nevertheless, this comparison is getting closer to the bone, given the intrinsically dangerous nature of the offences listed in Schedule 18A (most of which have a terrorist connection). 218.     The comparison with a discretionary life sentence is more difficult to understand. It is well-established that, in the absence of exceptional circumstances, the specified period which the prisoner must serve before he can be considered for release on licence should be fixed at half of the notional determinate sentence which he would have received for the offence had he not been subject to a life sentence because of his dangerousness ... Given that a discretionary life sentence prisoner is even more dangerous than an EDS prisoner, how can it be justified that the former can be considered for release on licence after serving half of what would have been an appropriate determinate sentence, whereas the latter must wait until he has served two thirds of the appropriate determinate sentence? The public’s need for protection is likely to be greater in the case of the ‘lifer’ than in the case of the EDS prisoner. But in any event, neither can be released on licence until the Parole Board has determined that it will be safe to do so. The public is equally well protected in each case. 219.     It is, of course, the case that there are ways in which the EDS prisoner is better off than the ‘lifer’. He must be released on licence at the end of his appropriate custodial term, even if the Parole Board has not determined that this would be safe, whereas the ‘lifer’ must only be released if this is adjudged safe. Once released on licence, he can only be returned to prison during the period of his extended sentence, whereas the ‘lifer’ will remain on licence, and thus subject to return to prison, for the whole of his natural life. This is the essence of the ‘package’ element which was pressed on us as a justification for the difference in their early release regimes. The package should not be ‘salami sliced’ into its component parts for the purpose of deciding whether each difference in treatment can be justified. 220.     In the end, however, it is easy to see how the additional disadvantages (from the prisoner’s point of view) of a discretionary life sentence are justified by the considerations which led the court to impose the sentence in the first place. It is hard to see how, alone of all four types of prisoner considered here, it is thought necessary to insist that an EDS prisoner stays in prison for more than half the custodial term appropriate to the seriousness of his offending. One would have thought that, if anything, a discretionary life prisoner would be even less likely to be fit for release at the half way point. But the speed of rehabilitation is notoriously difficult to predict at the outset. That is why the decision is left to the Parole Board when the time comes to consider release. And the protection which the Parole Board offers to the public is the reason why it is not necessary, for that purpose, to insist that EDS prisoners spend a larger proportion of the appropriate term in prison.” 27 .     Lord Mance, also dissenting, said: “ 244.     Applying similar reasoning to that of the ECtHR in   Clift, Parliament could be taken to have considered that this risk [to members of the public of serious harm occasioned by the commission by the offender of further specified offences] was in the case of an EDS prisoner sufficiently significant (a) to require release on licence during the currency of the appropriate custodial term to depend on a Parole Board recommendation, (b) to require two-thirds of such term to have run, before the Parole Board considered whether to make such a recommendation and (c) to require an extended period on licence after expiry of the appropriate custodial term. In contrast, release on licence is, in the case of an ordinary determinate prisoner, automatic once he has served the ‘requisite custodial period’ consisting of half their nominal sentence: section 244. The Administrative Court ... was not persuaded that there was any justification for a distinction which necessarily assumes that EDS prisoners remain as a class a significant risk until the two-thirds point, depriving them of even the chance of demonstrating their safety for release on licence until that point, whereas all ordinary determinate prisoners are assumed to be safe for automatic release at the half way stage. I see the force of the Administrative Court’s view, but in the light of the ECtHR’s approach in Clift and my conclusions regarding the comparison with indeterminate prisoners in the ensuing paragraphs, I do not base my judgment on it. 245.     It is, on any view, even more difficult to understand the logic of an apparently more stringent regime for EDS prisoners, when compared with discretionary life prisoners, in circumstances where the offending was, by definition, not of such a seriousness as to attract a life sentence. The tariff period for a discretionary life prisoner is, barring exceptional circumstances, set at half the notional determinate period. Once that tariff period has expired, the life prisoner has a right to require the Secretary of State to refer his case to the Parole Board, and to be released on licence if the Parole Board is satisfied that such release is, in short, safe ... 246.     A prisoner serving an EDS, therefore, is likely to be in a significantly worse position, as regards consideration by the Parole Board and release on licence, than a discretionary life prisoner, although the latter is likely to have committed a more serious, or no less serious, offence. It is true that in other respects a life prisoner is treated more severely: if the Parole Board is not satisfied as to the safety of his release, he may remain in prison indefinitely and, if he is released, he remains on licence and may be recalled throughout his life. But this is inherent in the nature of a discretionary life sentence, and, if anything, suggests that one would expect a more, rather than less, severe regime of review for release on licence to apply to life prisoners. It is also the case that some life prisoners may be less dangerous and safer at an earlier stage for release than some prisoners serving an EDS. But that is not the general position. None of these factors explains why life prisoners are in the great generality of cases likely to be eligible for consideration of their safety for release on licence by the Parole Board at a considerably earlier point than prisoners serving an EDS can hope for. Eligibility for consideration for release is merely the gateway to consideration by the Parole Board of safety for release on licence. It does not prejudge that question. No real explanation or justification has been given for a difference in treatment, which has important practical consequences for the prisoners affected and must seem a palpable anomaly. ” 28.     He concluded that prisoners serving an EDS were in a significantly worse position as regards eligibility for consideration by the Parole Board and release on licence when compared with discretionary life prisoners, that no convincing explanation or justification for this difference had been shown and that section 246A(8)(a) of the 2003 Act (see paragraph 44 below) was therefore incompatible with Article 14 read with Article 5 of the Convention in so far as it required two-thirds of the relevant custodial period to have expired before any such eligibility arose. RELEVANT LEGAL FRAMEWORK AND PRACTICE INTRODUCTION 29.     At the time of the domestic proceedings in the present case, the provisions applicable to sentencing could be found in the Criminal Justice Act 2003 (“2003 Act”). The sentencing regime in England was subsequently consolidated by the Sentencing Act 2020, which repealed the sentencing provisions set out in the 2003 Act but did not change the sentences that could be imposed. This judgment refers to the provisions of the 2003 Act under which the applicant was sentenced and which were referred to by the Supreme   Court in the domestic proceedings in his case. Subsequent relevant amendments are also described. 30.     The provisions concerning early release are set out in the 2003 Act. There have been a number of legislative amendments since the conclusion of the domestic proceedings in the applicant’s case and these are set out briefly. SENTENCING PURPOSES 31 .     The general purposes of sentencing adult offenders were set out in section 142(1) of the 2003 Act, which provided: “Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing– (a)     the punishment of offenders, (b)     the reduction of crime (including its reduction by deterrence), (c)     the reform and rehabilitation of offenders, (d)     the protection of the public, and (e)     the making of reparation by offenders to persons affected by their offences.” 32 .     These purposes did not apply to life sentences imposed under sections   224A (life sentence for second listed offence) or 225 (life sentence for serious offence) (see paragraphs 50-54 below). 33.     When determining the custodial sentence in a particular case, the judge was not to take account of the early release provisions. However, the early release provisions were taken into account, in sentencing, in fulfilling the requirement of section 82A(3) of the Powers of Criminal Courts (Sentencing) Act 2000 when fixing the minimum term to be served in respect of a discretionary life sentence (see the opinion of Lady Black, § 107 of the Supreme Court’s judgment delivered in the applicant’s case). DETERMINATE SENTENCES 34 .     Pursuant to section 152 of the 2003 Act, a discretionary determinate custodial sentence could only be imposed where the sentencing court was of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence could be justified for the offence. Under section 153, discretionary determinate sentences had to be for the shortest term commensurate with the seriousness of the offence. Standard determinate sentences 35.     For the purposes of this judgment, a standard determinate sentence is a sentence to a fixed term of imprisonment other than an EDS or SOPC (see paragraphs 40-47 below). 36.     Pursuant to section 244 of the 2003 Act, at the relevant time the majority of standard determinate sentence prisoners were entitled to be released on licence once they had served one half of their sentence (“the requisite custodial period”). After release, these prisoners continue to serve their sentence until the end of the licence period and are liable to be recalled to custody if they failed to comply with their licence conditions. 37 .     Section 246 provides for home detention curfew (“HDC”) for standard determinate sentence prisoners sentenced to less than four years’ imprisonment. This enables release on licence at any time during the period of 135 days ending with the day on which the prisoner would have served the requisite custodial period. The conditions of the licence include a curfew (section 250). 38 .     Section 260 of the 2003 Act provides for the early removal from custody (“ERC”) of foreign national determinate sentence prisoners for the purposes of deportation. At the relevant time, these prisoners could be removed from custody up to 270 days prior to their automatic release date. 39 .     Since 2020, a number of legislative amendments have been introduced in respect of determinate sentences. Specific arrangements were put in place for terrorist offenders, first under the Terrorist Offenders (Restriction of Early Release) Act 2020, introducing a new section 247A into the 2003 Act, and subsequently by the Counter-Terrorism and Sentencing Act 2021. The effect of these changes is that offenders who have committed a relevant terrorist offence are not entitled to automatic early release. Some will become eligible for release upon a recommendation of the Parole Board at the two-thirds point of their sentence but the prospect of early release has ended completely for some prisoners convicted of serious terrorism offences. New arrangements have also been put in place for certain serious violent and sexual offenders, first under The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 and subsequently by the insertion of a new section   244ZA into the 2003 Act by the Police, Crime, Sentencing and Courts Act 2022 (“the 2022 Act”). The overall effect of these changes is to require a number of such prisoners on whom standard determinate sentences have been imposed to serve two thirds of their sentences before becoming entitled to release. Moreover, a new section 244ZB of the 2003 Act allows the Secretary of State in certain circumstances to refer to the Parole Board the case of a prisoner who would otherwise have been entitled to early release, thus rendering early release subject to the Parole Board’s findings as to the risk posed by that prisoner upon release. Extended determinate sentences (“EDS” – section 226A) 40 .     Section 226A provided: “(1)     This section applies where– (a)     a person aged 18 or over is convicted of a specified offence (whether the offence was committed before or after this section comes into force), (b)     The court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, (c)     The court is not required by section 224A or 225(2) to impose a sentence of imprisonment for life, and (d)     Condition A or B is met.” 41 .     A “specified offence” was a violent or sexual offence listed in Schedule 15 to the 2003 Act. Condition A was that, at the time the offence was committed, the offender had been convicted of an offence listed in Schedule 15B (offences generally of a violent or sexual nature). Condition B was that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least four years. 42.     An EDS comprises two elements: (i) the appropriate custodial term, and (ii) a licence extension “for a period of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further specified offences” (section 226A(5)-(7)). The appropriate custodial term was defined as the length of the determinate sentence of imprisonment that would have been imposed but for the extended sentence (see section 226A(6) and paragraph 34 above). The licence extension could be for a period of up to five years in the case of a specified violent offence and up to eight years in the case of a specified sexual offence (section 226A(8)). 43.     The Court of Appeal in Attorney General’s Reference (No 27 of 2013; R   v.   Burinskas ) ([2014] EWCA Crim 334) explained: “26.     As is plain from the terms of the legislation, an extended sentence does not involve the imposition of a custodial term longer than i