1999/110
7 pages
ROYAL COURT
Royal Court
(Samedi Division)
16 June 1999
Before: Sir Philip Bailhache, Bailiff, sitting alone
Between:Christopher Wayne SnooksRepresentor
And:The Prison BoardFirst Respondent
And:The Secretary of State
as Minister responsible
for the Channel IslandsSecond Respondent
The Representation of Christopher Wayne Snooks
On 16 June 1997 the Representor was sentenced to 5½ years imprisonment for drugs related offences. On 26 September 1997 the sentence was reduced to 5 years on appeal.
On 26 September 1997 he applied for transfer to a mainland prison. Had this application been considered and approved before 1 October 1997 he would have been transferred under the Criminal Justice Act, 1961: s.26, and would have qualified for release at the halfway point in his sentence (March/April 1999).
On 1 October 1997 there came into force the Criminal (Sentence) Act, 1997 and the Transfer of Prisoners (Restricted Transfers) (Channel Islands and Isle of Man) Order, 1997, which did not allow transferred prisoners to benefit from the better deal that might be available in the receiving jurisdiction, i.e. the Representor would not qualify for consideration for release until his release would have occurred in Jersey (January 2000) rather than March/April 1999, the date applicable in England and Wales. The Representor’s application for a transfer was approved on 6 February 1998 under the new regulations.
On 26 November 1998 the Prison Board refused the Representor’s application for his restricted transfer conditions to be set aside. Application for a declaration that the refusal of the Prison Board to set aside the restrictions on his transfer was ultra vires and void, it being for the Secretary of State to make the decision.
Advocate S.E. Fitz for the Representor.
Advocate S.C.K. Pallot for the Prison Board.
JUDGMENT
THE BAILIFF: The Representor was sentenced by the Royal Court on 16 June 1997 to 5½ years imprisonment for offences of drug trafficking. On 26 September 1997 the sentence was reduced by the Court of Appeal to one of 5 years imprisonment. The Representor began serving his sentence in Jersey.
Under the relevant Rules applicable in this jurisdiction he would have been eligible, with remission for industry and good conduct, for release after having served two-thirds of his sentence.
On 26 September 1997, however, the Representor applied to be transferred to England to serve his sentence there. The ground set out in his application was to enable him to see his family, who were resident in England, more regularly.
Prior to 1 October 1997 a prisoner transferred from one part of the British Islands to another was treated, pursuant to the Criminal Justice Act, 1961 for the purposes of detention, release, recall and otherwise, as if the sentence had been passed by a Court in the jurisdiction to which he had been transferred. If, therefore, provisions for parole or early release were more favourable in the receiving jurisdiction, the prisoner would benefit to that extent.
On 1 October 1997 the Transfer of Prisoners (Restricted Transfers) (Channel Islands and Isle of Man) Order, 1997 and parts of the first schedule to the Crime (Sentences) Act, 1997 came into force in Jersey. The relevant provisions, for the purposes of this representation, are as follows.
Paragraph 1(2)(b) of the first schedule to the Crime (Sentences) Act, 1997 provides:
"Where -
(b)a person has been sentenced to imprisonment in any of the Channel Islands,
the Secretary of State may, without application in that behalf, make an order for his transfer to any part of the United Kingdom, there … to serve the whole or any part of his sentence or the remainder of his sentence, and for his removal to an appropriate institution there."
Paragraph 6(1) of the schedule provides:
"For the purposes of this Part of this Schedule, a transfer under Part 1 of this Schedule -
(a)is a restricted transfer if it is subject to a condition that the person to whom it relates is to be treated for the relevant purposes as if he were still subject to the provisions applicable for those purposes under the law of the place from which the transfer is made; and
(b)is an unrestricted transfer if it is not so subject."
Paragraph 7 of the schedule provides:
"(1)Where -
(a)a person’s transfer under paragraph 1 … above
…
is a restricted transfer, that person … may by order be transferred back to the country or island from which he or it was transferred.
(2)Where a person’s transfer under paragraph 1 or 2 above is a restricted transfer, that person shall while in the country or territory to which he is transferred be kept in custody except in so far as the Secretary of State may in any case or class of case otherwise direct."
Paragraph 15(2) of the schedule provides:
"Subject to subparagraph (3) below, where a person’s transfer under paragraph 1 … 2(b) … above to any part of the United Kingdom or to any of the Channel Islands is an unrestricted transfer, he shall be treated for the relevant purposes as if his sentence had been an equivalent sentence passed by a Court in the place to which he is transferred."
And, finally, paragraph 17(2) of the Transfer of Prisoners (Restricted Transfers) (Channel Islands and Isle of Man) Order, 1997, provides:
"Where a person’s transfer under paragraph 1(2)(b) … of the Schedule from Jersey to England and Wales is a restricted transfer -
(a)Articles 19 and 27(2) of the Prison (Jersey) Law, 1957 (as amended by the Prison (Amendment No. 3) (Jersey) Law 1994), Rule 26 of the Prison (Jersey) Rules, 1957 (as amended by the Prison (Amendment No. 8) (Jersey) Rules, 1981), Article 5 of the Criminal Justice (Jersey) Law, 1957, Article 10 the Criminal Justice (Young Offenders) (Jersey) Law 1994 (as amended by the Transfer of Functions (Health and Social Services Committee) (Jersey) Act 1995) ("the 1994 Law"), the Criminal Proceedings (Computation of Sentences) (Jersey) Rules, 1968 and Article 35 of the Court of Appeal (Jersey) Law, 1961 shall apply to him in place of the corresponding provisions of the law of England and Wales."
The effect of those provisions is that, with effect from 1 October 1997 a prisoner transferred from Jersey to England and Wales is subject to the relevant Jersey provisions governing remission and early release.
The Representor’s application was not considered by the Secretary of State until after the coming into force of these new provisions. On 6 February 1998 Mrs S Mistry of the Prison Service Headquarters wrote to the Representor explaining the differences between restricted and unrestricted transfers and concluding:
"Prisoners subject to "restricted" transfers can apply to have their cases reviewed at any time during the duration of the transfer and all restrictions which have been imposed on the transfer can be removed.
If you understand and consent to the terms of your restricted transfer from Jersey to England and Wales as outlined above, please sign below".
The Representor duly signed the document and was in due course transferred to a prison in England.
On 13 July 1998 the Representor applied for the condition restricting his transfer to be lifted. The purpose of this application was to enable his status to be considered under the equivalent English rules which enabled him to apply for early release, having served only half of his sentence. Unfortunately, the application was mishandled. Although I have not seen all the relevant documents it seems clear - and indeed this was conceded by Mr. Pallot - that the application was treated by the relevant authorities in both Jersey and England as if it fell to be determined by the Prison Board. The application was considered by the Board on 26 November 1998. The Board decided that the application should be refused. That decision was relayed to Prison Services Headquarters in England and Mrs. Mistry wrote to the Representor in the following terms:
"I refer to your request of 13 July 1998 (serial no: RCC98/130R) to have the conditions of your restricted transfer from Jersey to England and Wales removed. I regret to inform you that, having given full consideration to your application, the Jersey authorities have decided to refuse your request.
You therefore remain subject to the conditions of your restricted transfer to England and Wales and for the purposes of your continued detention, automatic release from custody, post-release supervision and recall, subject to the rules and regulations which apply under Jersey legislation."
In fact, as was conceded by Mr. Pallot, the application should have been determined by the Secretary of State.
Having received this notice of refusal by the Prison Board, the Representor deduced, perhaps not unreasonably, that it was the Prison Board which had taken the decision to transfer him from Jersey to England on a "restricted" basis. The Representor accordingly filed a representation which was served on the Board seeking inter alia declarations that the Board’s decision:
"…transferring the Representor to an English Prison under the terms of the Crimes Act 1997 (sic) instead of under the Criminal Justice Act 1961 was unlawful."
and:
"… that the subsequent decision by the Prison Board to lift the restriction was also unlawful."
When Miss Fitz received the relevant documentation following the service of the representation on the Prison Board it became clear that the first part of the relief sought was misconceived. The decision to transfer the Representor from Jersey to England had been taken by the Secretary of State and not by the Prison Board. Indeed the power to order the transfer of prisoners to different jurisdictions within the British Islands has always been vested in the Secretary of State. Miss Fitz accordingly sought leave - which was granted - to amend her representation and argument proceeded on the basis of the amended representation. The prayer of the amended representation provides as follows:
"WHEREFORE the Representor prays that the Court do order as follows THAT:
1.a copy of this Amended Representation be served upon the Prison Board and the Lieutenant Governor on behalf of the Secretary of State as Minister responsible for the Channel Islands:
2.a direction that the hearing of this Representation be expedited and that appropriate directions be given for the abridgement of time for the service of the First Respondent’s consequential amendments and the Second Respondent’s Answer;
3.a declaration that the Second Respondent’s first decision transferring the Representor to an English Prison under the terms of the Crimes Act 1997 (sic) instead of under the Criminal Justice Act 1961 was unlawful; further or alternatively
5.a declaration that the subsequent decision by the Prison Board (and I have interposed the words "to refuse") to lift the restriction imposed under the Crimes Act 1997 (sic) was ultra vires and therefore unlawful; that
6.the Court grant an order of certiorari to quash the decision made;
8.the Prison Board and/or the Secretary of State pay the costs of and incidental to this application on a full indemnity basis or as the Court may think fit;
9.the Court grant further or other relief as the Court may think fit."
Mr. Pallot had sought, in relation to the original representation, a stay on the basis that Jersey was a forum non conveniens. He contended that the question whether the Secretary of State should have ordered the transfer of the Representor to an English prison under the terms of the Criminal Justice Act, 1961 rather than the Crime (Sentences) Act, 1997 was one which ought to be determined by the English court. The granting of leave by consent to file the amended representation has in my judgment rendered it unnecessary to consider whether or not a stay should be granted. Both counsel agree that the decision of the Prison Board to refuse to lift the restriction attached to the transfer of the Representor to England was ultra vires and unlawful. It seems to me therefore that there is no reason why I should not grant the relief sought under paragraph 5 of the amended representation at this stage. I accordingly declare that the decision of the Prison Board to refuse to lift the restriction was ultra vires and unlawful. It follows that the decision is void and of no effect. There is no need for me to consider whether an order of certiorari should issue to quash the decision. No other substantive relief is sought against the Prison Board and I accordingly dismiss the remainder of the representation so far as the Prison Board is concerned.
I should add that the consequence of the declaration which I have just made is that the application made by the Representor on 13 July 1998 remains undetermined. It is the duty of the Secretary of State forthwith to consider and to determine the application. It would not be proper for me to encroach upon the Secretary of State’s discretion but I will say that the administrative muddle which has preceded the making of this declaration is no doubt a matter which the Secretary of State will take into account in arriving at his decision.
Miss Fitz has sought leave to serve the amended representation upon the Lieutenant Governor on behalf of the Secretary of State. The relief sought against the Secretary of State is a declaration that his decision to transfer the Representor to an English prison under the terms of the Crimes Act 1997 (sic) instead of under the Criminal Justice Act 1961 was unlawful. In support of her application Miss Fitz drew my attention to the hurdles which the Representor would have to overcome if he were obliged at this late stage to begin proceedings in England. He would have to apply for legal aid there and to persuade a judge that the three-month time limit relating to applications for judicial review should be extended.
In exercising my discretion I am entitled in my judgment to look at the merits of the representation. The chronology has already been recited. The Representor made his application for a transfer five days before the rules changed. At the time when the Secretary of State made his decision the relevant provisions of the Criminal Justice Act, 1961 had been repealed and replaced by different provisions in the Crime (Sentences) Act, 1997. There were no relevant transitional provisions relating to applications made but not determined before the new regime came into force on 1st October, 1997. The contention that in February 1998 the Secretary of State should have exercised his discretion under an enactment which had been repealed seems to me to be hopeless. It was the Representor’s misfortune that the rules changed - from his perspective - at an inopportune time. Nevertheless it is difficult to view that misfortune as an injustice. Subject to the Secretary of State’s discretion in relation to the application to lift the restrictive conditions of the transfer, the Representor will serve the sentence to which he has been sentenced by the Courts in this jurisdiction for the offences which he has committed. In the exercise of my discretion I refuse leave to serve the amended representation upon the Secretary of State.
Authorities
F de L Bois: A Constitutional History of Jersey (1972): ss. 4/15-4/21.
Lord Advocate -v- RW Forsyth Ltd (1990) SLT 458 (Scot).
Prison (Jersey) Rules 1957: Rule 26.
Criminal Justice Act 1961: s.26.
Transfer of Prisoners (Restricted Transfers) (Channel Islands and Isle of Man) Order 1997.
Crime (Sentences) Act 1997.
4 Halsbury Vol.1(1): para. 353.
4 Halsbury Vol.8(1) paras. 1084 et seq.
Re Allied Irish Banks (1987) JLR 157.