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The European Court of Human Rights has refused an Article 14 challenge to the early release provisions applicable to dangerous offenders under the extended determinate sentence scheme.

In 2013, the applicant was convicted of various sexual offences and sentenced to an extended determinate sentence (“EDS”) under section 226A of the Criminal Justice Act 2003. The sentence comprised a custodial term of twenty-one years’ imprisonment and an extended licence period of four years. Pursuant to the applicable early release provisions, the applicant will become eligible for parole once he has served two-thirds of his custodial term.

The applicant brought judicial review proceedings challenging these early release provisions. He argued that he would have been eligible for parole at an earlier point had a discretionary life sentence been imposed. He contended that this difference in treatment was not justified and that he had therefore been unlawfully discriminated against under Article 14 read with Article 5 (the right to liberty).

This challenge went up to the Supreme Court, which dismissed the applicant’s appeal by a majority of three to two: [2018] UKSC 59. The majority held that EDS prisoners were not in an analogous position to other prisoners, and that even if they were the different in treatment with respect to early release would be objectively justified by the aim of public protection.

The resulting application to the European Court of Human Rights has now also been dismissed for similar reasons. As compared with determinate sentence prisoners and discretionary life sentence prisoners, EDS prisoners present different degrees of offending and dangerousness. Their respective positions are therefore not analogous: see §104 of the judgment. In any case, the difference in treatment between these groups of prisoners is objectively justified. The aim pursued by the different sentencing regimes, of which the early release provisions form part, is to cater for different combinations of offending and risk in appropriate ways: see §106. The relationship between the EDS scheme and this legitimate aim falls well within the UK’s margin of appreciation: see §107. The application of that scheme therefore cannot be regarded as discriminatory.

Sir James Eadie KC and Jason Pobjoy acted for the UK Government.

The judgment is available here.

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