England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
LORD JUSTICE MOSES AND MR JUSTICE MACKAY
[2013] EWHC 3094 (ADMIN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/11/2015

Lord Justice Davis:

Introduction

1. The appellant, Steven Bristow, was sentenced on 6 May 2004 by a court in Thailand to a very lengthy term of imprisonment for drugs offences committed in Thailand. He was transferred to a prison in the United Kingdom on 13 July 2011, pursuant to the provisions of the Repatriation of Prisoners Act 1984 and the relevant bilateral agreement with Thailand. He was released on licence on 23 August 2013.
2. These judicial review proceedings were commenced as long ago as 11 October 2011. The appellant maintains that he had been the victim of discriminatory treatment, contrary to Article 14 of the European Convention on Human Rights, when his situation is compared in particular with the potential early release dates available to those repatriated prisoners convicted of violent or sexual offending. He in addition seeks to pursue a ground to the effect that there also has been a breach of his rights under Article 5 of the Convention.
3. The appellant's claim was dismissed by the Divisional Court (Moses LJ and Mackay J) on 16 October 2013. Permission to appeal was granted by Christopher Clarke LJ, after an oral hearing, on 11 December 2014.
4. The appellant was represented before us by Mr Hugh Southey QC leading Mr Jude Bunting. The respondents were represented before us by Mr James Strachan QC.

Background facts

5. The sentence imposed on the appellant in Thailand on 6 May 2004 was in respect of offences of possession of amphetamine and cannabis with intent to supply and also possession of a forged passport. The sentence was one of 26 years 6 months imprisonment, with credit for time spent on remand in custody. That the sentence was far longer than would have been imposed in the English courts for such offending is in legal terms immaterial to the present arguments.
6. It is a requirement under Thai law that a prisoner must normally serve four years or one third of the sentence in prison before being considered for repatriation to his home country to serve the balance of his sentence.
7. In 2007 the appellant made enquiries about transfer to the United Kingdom. The necessary procedures were initiated. However, although the authorities were agreeable to such transfer, in November 2007 the appellant indicated that he wished to defer consenting to transfer: it appears that in part was because he was hoping that there might be a forthcoming Royal Amnesty which would reduce his sentence.
8. In July 2008 the appellant indicated renewed interest in transfer. This, for whatever reason, was not then pursued: but at all events by June 2010 the appellant was reactivating his application for transfer and seeking updated information as to how his sentence would thereafter be administered in the United Kingdom.
9. In due course the United Kingdom, the Thai Government and the appellant himself gave formal consent to such transfer (the appellant's consent being given in writing on 12 January 2011). He was transferred to the United Kingdom on 13 July 2011. By this time, the sentence had been reduced, by reason of intervening Royal Amnesties in 2006, 2007 and 2008 to one of 17 years 9 months and 25 days (with deduction of time spent on remand in custody). The applicable warrant authorised continued detention in the United Kingdom of 3273 days. There also have been further amnesties, such that not only was the appellant released on licence on 23 August 2013 but, as we were told, his entire sentence (and licence) expired on 9 October 2015.
10. It is to be noted that at all stages the appellant had been accurately informed (in 2007, 2008 and 2010) of the potential release dates applicable to him, under the statutory regimes for the time being in force, if he were repatriated at those times to the United Kingdom to serve the balance of his sentence. In particular, in the context of his actual transfer the United Kingdom Government had stated in writing, in October 2010, that under the provisions applicable in England and Wales the appellant would automatically be released from custody on licence once he had served one half of the balance of his sentence remaining at the date of transfer. The consent of the Thai Government to the transfer, and indeed of the appellant himself, had been given on that basis.

The statutory framework

11. A crystal clear and very full exposition of the effect of the relevant statutory provisions in this context is contained in the judgment of Moses LJ (with whom Mackay J agreed) in the court below: [2013] EWHC 3094 (Admin). That being so, no more than a relatively brief summary is called for here.
12. The statutory provisions sanctioning repatriation of prisoners detained abroad, in accordance with international agreements, are contained in the Repatriation of Prisoners Act 1984. One primary policy purpose of that Act is "the obviously humane and desirable one of enabling persons sentenced for crimes committed abroad to serve out their sentences within their own society which, irrespective of the length of sentence, will almost always mitigate the rigour of the punishment inflicted": see R v Secretary of State for the Home Department ex p. Read [1989] AC 1014 at p 1048 (Lord Bridge).
13. By reference to this Act the United Kingdom has a significant number of international agreements with other countries. The terms of such agreements frequently can vary.
14. The agreement with Thailand was made on 22 January 1990 and came into effect on 6 February 1991. It among other things makes it clear that the transferring state retains exclusive jurisdiction concerning judgments and sentences; whereas the continued enforcement after transfer is governed by the laws and procedures of the receiving state. This therefore includes matters such as early release.
15. As to early release, there have over the years been various changes introduced by Parliament. For present purposes, it comes to this.

i) By virtue of provisions contained in the Criminal Justice Act 1991, long term prisoners – that is, prisoners serving sentences of four years or more – were entitled to be considered for parole after serving one-half of their sentence and were entitled to automatic release on licence after serving two-thirds of their sentence.

ii) As applied to repatriated prisoners, by reference to the terms of Schedule 2 to the 1984 Act, this meant that such prisoners, after transfer, could be considered for parole after serving one-half of the total sentence imposed by the transferring state. But automatic release was calculated by reference to the balance of the sentence remaining to be served at the date of transfer.

iii) With effect from 4 April 2005, by virtue of the provisions of the Criminal Justice Act 2003 there ceased to be eligibility for parole for prisoners serving determinate sentences: instead, such prisoners would be entitled to be released on licence after serving half the total sentence. However, such provisions did not apply to those sentenced for specified sexual or violent offences. Further, such provisions did not apply to those convicted of offences committed before 4 April 2005.

iv) Schedule 2 of the 1984 Act was duly amended to give effect to these new provisions. It follows that since the appellant had been convicted and sentenced before 4 April 2005 – he having, moreover, received a lengthy determinate term for offences which were not specified sexual or violent offences – he at the time, if transferred, would have continued, on transfer, to be within the regime set by the Criminal Justice Act 1991.

v) Further changes, however, were introduced by the Criminal Justice and Immigration Act 2008 with effect from 9 June 2008. This, broadly speaking, extended the entitlement to release on licence after service of half the total sentence to all determinate term prisoners (even for those convicted of offences committed before 4 April 2005). However, this still did not apply to prisoners who had committed specified sexual or violent offences: their entitlement to release remained at the two-thirds mark, albeit with continued eligibility to be considered for parole after serving one-half of their total sentence.

vi) By further amendment to Schedule 2 of 1984 Act, these further changes were also applied to repatriated prisoners: with the effect that (unless they had committed specified sexual or violent offences) they would be entitled to release after serving one half of the balance of the sentence remaining at the date of transfer. But there was one exception to this. That related to those transferred prisoners who had given consent to transfer, and the warrant was issued, before 9 June 2008. For such prisoners Schedule 2 of the 1984 Act was amended to give them an entitlement to early release on licence after half the total term of their sentence had been served (not, as with others, half the balance of the term remaining to be served on transfer). The reason for this differentiation, as the Divisional Court pointed out, is not hard to seek. Such prisoners who had given their consent to transfer before 9 June 2008 would have consented on the basis of the former law. That former law had conferred a right to be considered for parole at the half-way mark: which had now been abrogated. This exception, therefore, is to be taken as Parliament's selected method of "compensation" (in the word of Moses LJ) for the loss of the chance of being released earlier on parole.

vii) Since the appellant had not himself consented to transfer before 9 June 2008 the above mentioned exception did not apply to him. Accordingly he remained liable to transfer, if he thereafter consented, on the footing that he would be entitled to release on licence once he had served one-half of the balance of the sentence remaining at the date of transfer.

viii) Finally, for completeness there have been further amendments to the early release provisions contained in the Legal Aid Sentencing and Punishment of Offences Act 2012. These amendments post date the appellant's transfer.

16. So far as the appellant was concerned the net result, under the domestic statutory provisions, was precisely as set out in the notification to the appellant in 2010, on the basis of which he (and the Thai Government) agreed to the transfer. Among other things, this was stated:

"Under arrangements applicable in England and Wales your release from custody in the UK will be governed by the provisions of the Criminal Justice Act 2003 and the Criminal Justice and Immigration Act 2008. These provide for automatic release at the halfway point of a sentence. However, as a prisoner repatriated to the UK you will be automatically released from custody once you have served one half of the balance of the sentence remaining at the date of transfer. You should note that because UK release arrangements do not apply to the whole of the sentence, and that the calculation of the balance of the sentence remaining to be served in the UK takes account of foreign rates of remission or credits, your actual release date may be later than the halfway point of the whole sentence" (emphasis in the original).

It was common ground before us that this accurately reflected the application to the appellant of the relevant domestic statutory provisions.

Appellant's case

17. The claim form seeks, rather oddly, an order quashing the "decision" of the Secretary of State, said to have been made on 13 July 2011, to differentiate between repatriated prisoners convicted before 4 April 2005 and transferred before 9 June 2008 on the one hand and those repatriated prisoners convicted before 4 April 2005 and transferred after 9 June 2008. No claim for damages was advanced.
18. However the challenge has been reformulated by Mr Southey, albeit the bedrock of the argument remains based on the content of Article 14 of the Convention. That provides:

"Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground 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."

19. In this context, it is conventional to adopt the five stage approach indicated as applicable by the House of Lords in R (S) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196, [2004] UKHL 39 (see paragraph 42 of the speech of Lord Steyn). The five questions to be posed as a framework for considering the issue of discrimination (albeit it was stressed that a rigidly formulaic approach is to be avoided) are these:

"(1) Do the facts fall within the ambit of one or more of the Convention rights? (2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14? (4) Were those others in an analogous situation? (5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?"

20. It can be accepted for the purposes of the present argument – as the Divisional Court was prepared to do – that the first two questions are to be answered in the affirmative, in favour of the appellant's argument. There is, however, an insuperable problem, at this level, to the appellant's argument in the answer to the third question: by reason of the decision of the House of Lords, binding on this court, in the case of R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, [2006] UKHL 54, as I will come on to mention.
21. As is often the case in this context, the fourth and fifth questions overlap to a very great extent: and are best considered together.
22. Mr Southey's arguments came to this. He took as his principal comparator group that of repatriated prisoners sentenced to lengthy determinate terms for sexual or violent offending. By virtue of the statutory provisions, such prisoners were eligible for consideration for release on parole when they had served one half of their total sentence. But those in the position of the appellant were not: their only entitlement, on transfer, was to release once they had served one half of the balance of the term at date of transfer. Thus those long-term prisoners sentenced to determinate terms for sexual and violent offences were potentially in a better position, and could be released earlier, than those who had not been sentenced for sexual or violent offences. That, Mr Southey submitted, was discriminatory; and was incapable of objective justification.
23. Mr Strachan, on the other hand, emphasised that this appeal must (as conceded) fail by reason of the decision of the House of Lords in Clift. He further submitted, if necessary, that the two groups of prisoners were not in a truly analogous position and that it was entirely in order for Parliament to differentiate, on policy grounds, the applicable release dates depending on the type and nature of the offending concerned. He also observed that Mr Southey's argument, while focusing on the entitlement of long-term prisoners convicted of sexual or violent offences to consideration for parole at the half-way mark, ignored the point that such prisoners only had an actual entitlement to release on licence once they had served two-thirds of the balance of the term remaining at the date of transfer. In that sense, they were more strictly treated than those in the position of the appellant.

Judgment of Divisional Court

24. The Divisional Court held that it was, as conceded (and as, indeed, has happened in other such cases) bound to dismiss the claim, by reason of the decision of the House of Lords in Clift: paragraph 12.
25. Having so decided, the Divisional Court – noting that Mr Southey's eye was on seeking in due course to persuade the Supreme Court to depart from the House of Lords decision – dealt succinctly with the balance of the arguments sought to be advanced. The central reasoning, adverse to Mr Southey's arguments, is contained in paragraphs 15, 16 and 17 of the judgment of Moses LJ.

Disposition on the Article 14 point

26. This court is likewise bound to dismiss the appeal by reason of the House of Lords decision in Clift.
27. It is quite true that the European Court of Human Rights in the case of Clift v UK [2010] 51 EHRR 13 seems not to have agreed with the approach of the House of Lords. But this court remains bound by the doctrine of precedent to follow and apply the decision of the House of Lords: see Kay v Lambeth Borough Council [2006] 2 AC 465, [2006] UKHL 10. There is no exception available to justify a departure from that rule: see, for example, R (Minter) v Chief Constable of Hampshire [2014] 1 WLR 179, [2013] EWCA Civ 697 at paragraph 30 of the judgment of Laws LJ. I add that, when the decision of the House of Lords in Clift was aired in the Supreme Court in R (Kaiyam and Haney) v Secretary of State for Justice [2015] 2 WLR 76, [2014] UKSC 66, the Supreme Court did not pronounce it to be wrong: that case, in the event, being decided on other grounds.
28. That being so, this court at the outset of the hearing queried with Mr Southey why or whether it could be appropriate to enter into lengthy argument on the fourth and fifth questions, as posed in R(S), when the appeal in any event had to be dismissed: and the more so given the great pressures on the Court of Appeal's time and the need to deal with other cases.
29. Mr Southey's response was that if this court were prepared to grant permission to appeal to the Supreme Court he could see that it might not be appropriate. However, I did not gain any impression from Mr Southey that if this court did entertain substantive arguments on these other matters and if this court were to reach the same conclusion as the Divisional Court then that might operate to forestall an attempt on his part to take the case to the Supreme Court in any event.
30. In the result this court indicated at the hearing that it was not prepared to entertain substantive arguments on a point which would be academic to the outcome of the appeal in this court.
31. My reasons for being party to such a conclusion are these.
32. In the case of R (Kaiyam and Haney) when it came to the Court of Appeal, [2014] 1 WLR 1028, [2013] EWCA Civ 1587, this court was prepared to grant permission to appeal to enable, among other things, a challenge to the correctness of the House of Lords decision in Clift to be mounted in the Supreme Court. In the course of his judgment the Master of the Rolls (with whom Underhill LJ and Macur LJ agreed), however, said this at paragraph 12:

"I recognise that there are some cases where it may be desirable for the Court of Appeal to consider the issues in detail, even where (i) binding authority requires it to decide the appeal in a certain way and (ii) it gives permission to appeal to the Supreme Court. A detailed analysis of the arguments may be of assistance to the Supreme Court, although the Court of Appeal is no better placed than the Supreme Court to address the issues. But I see little purpose in doing so in the particular circumstances of these appeals. The issue of whether the Supreme Court should follow either or both of the Strasbourg decisions in preference to its own (relatively recent) decision is one pre-eminently for it to determine. Our courts are required by section 2(1) of the Human Rights Act 1998 to do no more than "take into account" the relevant Strasbourg jurisprudence. In these circumstances, whether the Supreme Court decides to follow Strasbourg raises policy questions of some delicacy. I see no point in second guessing how the Supreme Court will approach the question."

33. I had and have a further concern in this case. This is that this appeal has by now in any event become essentially academic for the appellant himself. Not only was he released on licence in 2013; he has by now also served his entire sentence. Nothing further in his case can in practical terms now be achieved. Mr Southey suggested that the appellant might, if ultimately successful, have a claim in damages for unlawful discrimination. That is not an impressive point, given that there never has been included a claim for damages in the claim form: not in 2011 when the proceedings were issued, not now.
34. Moreover as to the substance of the claim of unlawful discrimination this particular case can, in practical terms, surely be of very limited wider application. The category of repatriated persons in the position of the appellant – sentenced prior to 5 April 2004 and transferred after 9 June 2008 – currently still affected by the point is likely to be very small indeed.
35. In such circumstances, in my view it was not a sensible or useful use of the time of this court to engage in arguments which could not affect the outcome of the appeal. The Divisional Court, moreover, had already given its view on those points; and it would not in such circumstances have greatly assisted if this court had added its own views.
36. I appreciate that permission to appeal was granted to this court on the basis that this might be an appropriate case for this court then to consider granting permission to appeal to the Supreme Court on the Clift point. Unfortunately this particular case does not seem to have been a very appropriate case for that course to be adopted; and it is rather regrettable, to my mind, that precious legal aid resources have been expended in pursuit of this case thus far.

Disposition on Article 5 point

37. Mr Southey, however, raised a further ground of appeal (which was not raised or argued before the Divisional Court) by reference to Article 5. The argument was based on the decision of the Grand Chamber of the European Court of Human Rights in Del Rio Prado v Spain, Application Number 42750/09 [2013] ECHR 1004. The judgment post-dated the decision of the Divisional Court in this case.
38. That case was a complicated one on its facts. Shortly put, the position appears to have been this. The applicant prisoner had received a series of sentences in Spain for grave crimes, totalling some 30 years. In 2006 a new precedent was set by the courts in Spain, representing a departure from the law as previously understood, which had the consequence that the applicant retrospectively stood to lose remission which she otherwise would have stood to receive at the time she was sentenced. Her remission had initially been calculated on the footing that her various sentences were to be grouped together: indeed, whilst she had been notified in 2001 that she would fully discharge her sentence on 27 June 2017, she was further notified in 2008 that, by reason of the remission then understood to be applicable to her, she would be released on 2 July 2008. However the new precedent had, it was then noted, the effect that remission would be calculated on the sentences imposed individually, not as grouped: and that would, as she was then informed, have the effect of putting her release date back to 2017.
39. It was held by the Court that that constituted a breach of Article 7 and Article 5.1(a) of the Convention. It was said (at paragraph 125 of the judgment) that the standard of lawfulness set by the Convention required that the law be sufficiently precise to allow the person affected to foresee the consequences which a given action may entail. This was then said at paragraph 127:

"The Court observes first of all that as the applicant rightly pointed out, the distinction made for the purposes of Article 7 of the Convention between the "penalty" and the "execution" of the penalty is not decisive in connection with Article 5.1(a). Measures relating to the execution of a sentence or to its adjustment can affect the right to liberty protected by Article 5.1, as the actual duration of deprivation of liberty depends on their application, among other things (see, for example, Grava, cited above, paras. 45 and 51, and concerning the transfer of prisoners between states, Szabó v Sweden (dec.), no. 28578/03, ECHR 2006-VIII). While Article 7 applies to the "penalty" as imposed by the sentencing court, Article 5 applies to the resulting detention."

40. The conclusion (at paragraph 130) was that the applicant could not have foreseen to a reasonable degree that the method used to apply remissions would change as a result of a new precedent set in 2006 and would be applied to her; and (at paragraph 131) a longer term of detention than she should have served under the law at the time of her conviction "taking into account the remissions of sentence she had already been granted" could not be lawfully justified.
41. That case, in my view, lends no support to Mr Southey's argument in this case. In this case the appellant was sentenced under Thai law – Thailand, of course, not being a member state – to a term in excess of 26 years imprisonment. He had, I apprehend, no entitlement under Thai law to early release (although there was a hope, no doubt, of Royal Amnesties). It is true that there were in the meantime various changes in the English legislation relating to eligibility for parole and early release. But those could only apply to the appellant if and when he – and the UK Government and the Thai government – consented to his transfer and was transferred. Until then, enforcement of his sentence was a matter of Thai law.
42. At no time was the appellant given inaccurate information as to his prospective release dates if transferred. On the contrary, he was at all times accurately informed. He did not consent to transfer before 9 June 2008. When he did consent to transfer (in 2010) the prospective release date was accurately communicated to him: and the consent of all concerned was given on that basis. There thus was no relevant change in the enforcement of his sentence in the United Kingdom with regard to him. On the contrary, this was the only relevant "execution" of his sentence in the United Kingdom with regard to him as to early release. Put more broadly, he could have had no greater foresight or justifiable expectation prior to transfer other than that, if and when transferred, the enforcement of the sentence in the United Kingdom would be in accordance with the law as it stood at the time of transfer. That is precisely what happened. There has been no unfairness or inconsistency of any kind.
43. Accordingly such principles as Del Rio Prado established can have no purchase at all in this case. Moreover, as the Divisional Court pointed out in the case of R (Abedin) v Secretary of State for the Home Department [2015] EWHC 782 (Admin) the reasoning in Del Rio Prado is very specifically geared to the facts of that case. Furthermore, that case was very much coloured by Article 7 considerations: which have not featured in argument in the present case.

Conclusion

44. I would dismiss the appeal on the grounds advanced, both by reference to Article 14 and by reference to Article 5.

Lord Justice McCombe:

45. I agree.

Master of the Rolls:

46. I also agree.