England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/10/2013

Lord Justice Moses:

1. On 6 May 2004 the Claimant was sentenced by a Thai court to 26 years and six months imprisonment for offences equivalent to possession of illegal drugs with intent to supply. On 12 January 2011 he consented to his transfer to a British prison pursuant to the Repatriation of Prisoners Act 1984. By virtue of the warrant made pursuant to that Act and the domestic legislation relevant to the enforcement of foreign sentences in the United Kingdom he is entitled to be released after he has served half of the balance of the sentence to be served after the date of his return. He complains that, contrary to Art. 14, read with Art. 8 of the European Convention of Human Rights, he has been discriminated against when compared to other prisoners, in particular, those convicted abroad of a sexual or violent offence. Such prisoners are eligible for parole, and thus might be released after half of the total sentence ordered by the foreign court.
2. The effect of which the claimant complains is the result of changes to domestic sentencing legislation. But it is important to keep in mind that the claimant committed a crime in Thailand, and was sentenced under that foreign regime. The Repatriation of Prisoners Act 1984 and the relevant treaty arrangements, (the Prisoner Transfer Agreement between the UK and Thailand on the Transfer of Offenders and on Co-operation in the Enforcement of Penal Sentences 1990) were designed for the benefit of those who wish to serve part of their sentences at home, whilst upholding the foreign sentence, whether or not it would have been of a similar length if passed in the United Kingdom, and whether or not it corresponds to any offence here. A warrant issued under section 1 of the Repatriation of Prisoners Act 1984 gives authority for detention in the United Kingdom, as if it was a sentence passed by a United Kingdom court, for the balance of the sentence which remains to be served after transfer. The treaty arrangements provide that, once repatriated, the prisoner is subject to the United Kingdom statutory scheme for enforcement of the balance of the sentence which remains to be served, in particular subject to the provisions relating to early release.
3. As the domestic early release provisions have changed, so has their application to repatriated prisoners through amendments to the Schedule to the Repatriation of Prisoners Act 1984. Under the Criminal Justice Act 1991, long term prisoners in the United Kingdom were entitled to be considered for parole after one half of their sentence (section 35(1)) and to automatic release after serving two thirds (section 33(2) and (5)). These early release provisions were applied to repatriated prisoners through amendments to the Schedule to the Repatriation of Prisoners Act 1984 made by the Criminal Justice Act 1991. The way in which the 1991 early release provisions were applied depended on whether the release was discretionary, through the Parole Board, or automatic. Parole eligibility was calculated by reference to the whole of the period the prisoner had spent in custody, whether in a foreign country or in the United Kingdom. Automatic release was calculated by reference to the remainder of sentence to be served as at the date of transfer (see the definition of "the enactments relating to release on licence" in paragraph 1(1A) and paragraph 2(2) to the Schedule to the Repatriation of Prisoners Act 1984).
4. On 4 April 2005 the Criminal Justice Act 2003 discontinued parole eligibility in relation to determinate sentences, other than those for sexual or violent offences, and introduced automatic release halfway through the sentence. But these new domestic early release provisions did not apply to prisoners who had committed offences before 4 April 2005, who remained, like sexual or violent offenders, subject to the earlier Criminal Justice Act 1991 regime of discretionary release after one half and automatic release after two thirds of the sentence. These changes were applied to repatriated prisoners through amendments to the Schedule of the Repatriation of Prisoners Act 1984 made by the Criminal Justice Act 2003. Accordingly, for prisoners sentenced abroad for offences committed before 4 April 2005, no changes were made to their early release arrangements.
5. On 9 June 2008 the Criminal Justice and Immigration Act 2008 sought to apply the same early release provisions to most prisoners serving determinate sentences, whether they had committed offences before or after the introduction of the Criminal Justice Act 2003, on 4 April 2005. Accordingly, all such prisoners were entitled to automatic release halfway through their sentence. There remained certain exceptions to this harmonisation of the early release provisions: prisoners who had committed sexual or violent offences (specified under Schedule 15 to the Criminal Justice Act 2003) remained subject to the old Criminal Justice Act 1991 provisions. Those prisoners continued to be eligible for parole half way through their sentence, and entitled to automatic release after two thirds of their sentence.
6. These changes were applied to repatriated prisoners. Unless they had committed violent or sexual offences, they were entitled to automatic release after half of the balance remaining to be served after the date of transfer. But this provision was qualified in the case of prisoners who had committed offences before 4 April 2005 (the date when, for the most part, eligibility for parole was removed by the Criminal Justice Act 2003) and who had consented to transfer before 9 June 2008 (the date of the introduction of the harmonised regime under the Criminal Justice and Immigration Act 2008). Such prisoners had sought and been granted transfer on the basis that they would become eligible for parole after half the total sentence had elapsed. To compensate such prisoners for loss of their eligibility for parole they were granted an entitlement to automatic release after half of the total sentence had elapsed. But this exception did not apply, and there was no reason for it to apply, to those who had committed offences before 4 April 2005 but who did not seek and were not granted a transfer until after the introduction of the Criminal Justice and Immigration Act 2008 on 9 June 2008. They had never consented to transfer on any basis other than that they were not eligible for parole which, as in the case of domestic prisoners, other than sexual or violent, had been abolished. The claimant fell into that category. Although he had made earlier requests for transfer, he had not pursued them. Since he was not a sexual or violent offender, he was not eligible for parole. His automatic release was calculated on the basis of half of the sentence which remained to be served after his transfer.
7. That was a basis consistent with the statutory regime throughout the process of change which I have endeavoured to describe. It is an important feature of the application of domestic early release provisions to prisoners transferred from abroad that for the purpose of calculating automatic early release the sentence is deemed to begin when the warrant takes effect, that is, the date of return. Thus if a domestic prisoner is entitled to be released half-way through his sentence, so too will a repatriated prisoner, although his sentence is deemed to begin when the warrant takes effect. This gives effect to the legislative scheme of the Repatriation of Prisoners Act 1984. The repatriated prisoner is serving a foreign sentence which he has not completed. Although the warrant issued by the Secretary of State under the 1984 Act and its Schedule is deemed to be a sentence for the purposes of authorising detention and applying domestic early release provisions, it is designed so as not to undermine the original sentence. Had a prisoner been entitled to automatic release based on the length of the whole of the sentence, there would have existed the risk that a prisoner who had completed more than half of his sentence abroad would be entitled to immediate release. A calculation based on the proportion of the sentence remaining to be served in the United Kingdom ensures that a prisoner will remain in detention once transferred, and, thus, upholds the integrity of the sentence which a foreign court has judged to be merited.
8. The 1984 Act and its Schedule are not designed to equate the whole of the foreign sentence to a sentence passed in the United Kingdom. Only the balance remaining after transfer is deemed to be a United Kingdom sentence (R v Secretary of State for the Home Department, ex parte Oshin [1999] WL 114270).
9. Eligibility for parole is different. Release is discretionary and based upon an assessment as to whether a prisoner remains dangerous. Throughout the period of changes, that eligibility, which provides no guarantee of release, has always been calculated on the basis of half the totality of the sentence. To do otherwise would have placed a repatriated prisoner at a disadvantage, in relation to the possibility of parole, when compared to domestic prisoners to whom the parole provisions applied. The power to specify the period of time served prior to repatriation in the warrant for the purposes of paragraph 2(2) of the Schedule to the Repatriation of Prisoners Act 1984 was intended to achieve equivalent treatment for the purposes of parole (R v Secretary of State for the Home Department ex parte Ellaway [1999] EWHC J020). The only exception to this principle occurred in 2008 in the case of those prisoners who had agreed to transfer at a time when they had been told they would be eligible for parole after half of the totality of their sentence; they had lost that eligibility due to the change in domestic provisions. They were compensated by an entitlement to automatic release after they had served half of the total sentence.
10. There was no dispute about these provisions and, accordingly, I have attempted to deal with them without falling victim to the draftsman's preference for legislation by reference. Although Mr Southey QC's achievement in identifying the legislative sources of this application is astonishing, his client, cannot, however, complain. At all times, when making a decision as to whether to seek transfer, he has been informed accurately of the consequences.
11. When he first sought repatriation, in October 2007, he was told that his discretionary release date (the date when he was eligible for parole), would be half-way through his total sentence and that his automatic release date would be after he had served two thirds of the period remaining to be served after his transfer. He decided not to be transferred at that time. By the time he did finally decide that he wished to be transferred, on 21 December 2010, parole had been abolished for domestic and repatriated prisoners who had not committed sexual or violent crimes, and he was informed that he would be automatically released after serving one half of the balance of the sentence remaining after the date of the transfer. One of the reasons the claimant delayed requesting transfer was his hope for amnesty. His hope has subsequently been fulfilled and, as the result of the shortening of his sentence by the King, he is due for release in August 2013. These facts underline the fact that the length of the time he spends in custody is dependant on the length of the sentence passed in Thailand and that, in consenting to enforcement of part of the sentence by the United Kingdom authorities, he was submitting himself to the United Kingdom system of early release as it applied at the date of his transfer. He has no justifiable complaint if a change in domestic legislation causes his position to be worse than it would have been had he sought transfer earlier. A prisoner who delays his request for repatriation will always run the risk of a change in the domestic early release scheme.
12. There was, and could be no dispute, but that Art. 5 of the Convention is engaged (James and others v Secretary of State for Justice [2010] 1 AC 553 ([17] and [52]). The claimant accepts that the decision of the House of Lords in R (Clift) v Home Secretary [2007] 1 AC 484 is binding and that, therefore, this court is bound to rule that the claimant has no 'other status' within the meaning of Art.14 and that this claim fails.
13. But his pessimism is tempered by the knowledge that in the European Court of Human Rights Clift v United Kingdom [2010] ECHR 1106 the status of the applicant as a long term prisoner was sufficient to found a successful Art. 14 claim. Should the Supreme Court follow the ECHR, Mr Southey QC seeks to demonstrate how powerful an appeal from this decision he would have, with an eye to gaining permission from this court.
14. With this target in his sights, he compares this claimant's position with that of a prisoner who has committed sexual or violent offences before 4 April 2005 but has been transferred at the same time as the claimant. Such a prisoner has committed offences, so he says, of a more serious nature, recognised to be a source of danger to the public and yet has the possibility of release, should he be granted parole earlier than the claimant. The date of that prisoner's eligibility for parole is calculated by reference to half of the total sentence, not half of the balance remaining to be served.
15. In my view, the claimant is not in an analogous position to a sexual or violent offender. Domestic sexual or violent offenders remain subject to the parole system and will only be released, after half their sentence, if the Board takes the view that it is safe to do so. Those sentenced abroad for such offences, if they seek repatriation, subject themselves to the same system. They will only be released half way through their total sentence if it is safe to do so. Otherwise they will only be released after two thirds of the balance of the sentence remaining after transfer has been served.
16. The claimant is, like domestic prisoners, unable to claim parole. For that reason he cannot be considered to be in an analogous situation to prisoners eligible for discretionary release. His automatic release is calculated, as it always has been under the legislative scheme for repatriation, by reference to the balance of period remaining to be served after transfer. There is no warrant for treating him in the same way as those sentenced to a determinate sentence before 4 April 2005, who agreed to transfer at a time when the parole system still applied to such prisoners and, thus, unlike this prisoner, had an expectation of a parole eligibility date.
17. This is one of the many cases of asserted discrimination where it is not easy to distinguish between those factors which demonstrate that the claimant is not in an analogous situation, and those factors which afford justification. The difference in treatment is justified because the legislation relating to early release changed before the claimant chose to seek transfer. There can be no possible complaint because parole was abolished in relation to determinate offences. Yet that is the reason why the Secretary of State has calculated this prisoner's automatic release date on the basis of the period which remained to be served after transfer. As I have demonstrated, that is the period which has always been used for the basis of calculation of automatic release, save for the exception I have already identified.
18. The justification for that basis of calculation is the need to avoid the risk that the warrant following transfer should lead to immediate release, in the case of those who had, before transfer, already served more than half the total sentence. It preserves the authority of the original sentence.
19. Mr Southey is correct in pointing out that the Secretary of State could use his power, under Paragraph 2(2) of the Schedule, to alter the basis of calculation in the case of those prisoners who used to be eligible for parole but are no longer. But there is no reason why he should do so. This claimant is treated like all others who have consented to transfer after changes in the United Kingdom early release scheme. For those reasons I would refuse this application.

Mr Justice Mackay:

20. I agree.