Nezar Hindawi - Upholding of Parole Board Review

Upholding of Parole Board Review

He became eligible for parole in April 2001, having served one third of his sentence. However, his application for his case to be reviewed by the parole board, on the basis that he no longer posed a risk due to changes in the political climate in Syria, was rejected by Home Secretary David Blunkett in 2003.

In January 2004, the High Court ruled that this amounted to discrimination on the grounds of nationality, in breach of article 14 of the European Convention on Human Rights, among other arguments, and gave Hindawi leave to appeal.

The relevant legislation said:

After a long-term prisoner has served one half of his sentence, the Secretary of State may, if recommended to do so by the Board, release him on licence.

In relation to a long-term prisoner who is liable to removal from the United Kingdom, shall have effect as if the words "if recommended to do so by the Board" were omitted.

Hindawi claimed this amounts to unlawful discrimination on the grounds of nationality, something forbidden by Article 14 of the ECHR (requiring the rights and freedoms under the Convention to be "secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status.").

Had he not been liable to deportation, his case would have gone to the Parole Board. Because he was liable to deportation, it didn't go before the Board - Blunkett decided for himself. The judge concluded that this was discrimination under ECHR and he had heard no argument justifying this discrimination.

His further argument was that the law allowed the Home Secretary to get a recommendation from the Parole Board and therefore, to apply the law in conformance with ECHR, he should have done so and followed their recommendation. The judge agreed. The law was no different in principle to one that said "no parole for Frenchmen" and that would be a clear breach of ECHR 14.

EWHC 78 (Admin)

The Home Office appealed against this decision. The Court of Appeal examined the question of whether ECHR 14 could be invoked at all. To do so, the case must involve another right in the ECHR - in this case, the high court judge concluded that the right to liberty except by due process of law (Article 5) was involved sufficiently to allow Article 14 to come into play. The Court of Appeal disagreed (but 2:1, not 3:0) and therefore allowed the appeal. They also took the view that the different release schemes were justified because of the different circumstances (deportation v parole in the community).

EWCA Civ 1309

The case then went to the House of Lords. They decided unanimously that, once a parole or early release scheme existed, it became part of the right to liberty and so Article 5 was engaged, allowing a claim under Article 14. They also rejected the view that the different schemes were justified.

Therefore, at the end of the day, Hindawi is entitled to have the Parole Board decide his case.

UKHL 54, SESSION 2006-07