Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY [2010] HCJ 4
	OPINION of THE HONOURABLE LORD EMSLIE in re Punishment Part Hearing under section 10(2J) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 relative to JULIAN NICHOLAS GILBEY ______________

For the Crown: Allan, QC, AD

For Mr Gilbey: Macara, QC, solicitor advocate

16 July 2010

Introduction

[1] On 19 October 2001 Julian Nicholas Gilbey, a British citizen, was (along with others) arrested at Don Mueang Airport, Thailand, as he was about to board a flight to Taiwan. In his possession was a black travelling bag containing several packages of high-purity heroin. The weight of the packaged drugs was in excess of 3.3 kg. After a lengthy trial Mr Gilbey and three co-accused were, on 19 September 2002, convicted of drug-trafficking offences. The initial sentence of the court for these offences was execution, but on various grounds that was commuted to life imprisonment backdated to 19 October 2001.

[2] In Mr Gilbey's case appeals failed in 2004 and 2006, and he continued to be held in Thai prisons until, in 2009, the possibility of his being repatriated to the UK arose. This proceeded under international arrangements, the primary purpose of which was to give prisoners such as Mr Gilbey "...the opportunity to serve their sentence within their own society". After the requisite consents were obtained from the Thai and UK governments, and from Mr Gilbey himself, the transfer ultimately took place pursuant to a repatriation warrant signed by the Scottish Ministers on 22 February 2010. Since his arrival in this country, Mr Gilbey has continued to be detained at HM Prison Barlinnie, Glasgow.

[3] The Scottish Ministers now ask this court, by virtue of section 10(2A) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"), to fix an appropriate punishment part referable to Mr Gilbey's commuted Thai life sentence, and I have heard an interesting debate on the principles to be applied in determining the application.

The repatriation regime

[4] An appropriate starting point here is in my view the statutory regime under which Mr Gilbey's repatriation was effected and without which he would not be in this country at all. By section 1(1), (3), (5) and (7), the Repatriation of Offenders Act 1984 ("the 1984 Act") makes provision for a relevant warrant to be issued where the UK is a party to international arrangements (for the transfer of prisoners) between the United Kingdom and "a country or territory outside the British Islands", where the subject is a British citizen detained in consequence of criminal proceedings, and where all necessary consents (including that of the prisoner) have been given. Section 3 regulates transfer into the UK in inter alia the following terms:

"3(1) The effect of a warrant under section 1 providing for the transfer of the prisoner into the United Kingdom shall be to authorise -

(a) the bringing of the prisoner into the United Kingdom from a place outside the United Kingdom;

....; and

(c) the detention of the prisoner in any part of the United Kingdom in accordance with such provisions as may be contained in the warrant, being provisions appearing to the relevant Minister to be appropriate for giving effect to the international arrangements in accordance with which the prisoner is transferred.

....

(3) In determining for the purposes of paragraph (c) of sub-section (1) above what provisions are appropriate for giving effect to the international arrangements mentioned in that paragraph, the relevant Minister shall, to the extent that it appears to him consistent with those arrangements to do so, have regard to the inappropriateness of the warrant's containing provisions which -

(a) are equivalent to more than the maximum penalties (if any) that may be imposed on a person who, in the part of the United Kingdom in which the prisoner is to be detained, commits an offence corresponding to that in respect of which the prisoner is required to be detained in the country or territory from which he is to be transferred; or

(b) are framed without reference to the length -

(i) of the period during which the prisoner is, but for the transfer, required to be detained in that country or territory; and

(ii) of so much of that period as will have been, or be treated as having been, served by the prisoner when the said provisions take effect.

.... "

[5] As the House of Lords confirmed in R v SSHD, ex parte Read 1989 1AC 1014, the 1984 Act was passed in implement of the Convention on the Transfer of Sentenced Persons 1983 (Cmnd. 9617). Under that Convention, signatories could opt to exclude either of two quite different alternative regimes which were described by Lord Bridge of Harwich (at pp 1048-9) in these terms:

"Two radically different procedures are provided under the Convention affecting the nature of the sentence to be served by a prisoner after his transfer to the administering State. These are described in Articles 9, 10 and 11 which, so far as relevant, provide as follows:

' Article 9

Effect of Transfer for administering State

1. The competent authorities of the administering State shall (a) continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or (b) convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.

2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.

3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions...'

Article 10

Continued Enforcement

1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.

2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.

Article 11

Conversion of sentence

1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority: (a) shall be bound by the findings as to the facts in so far as they appear explicitly or implicitly from the judgment imposed in the sentencing State; (b) may not convert a sanction involving a deprivation of liberty to a pecuniary sanction; (c) shall deduct the full period of deprivation of liberty served by the sentenced person; and (d) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed...."

Article 3.3 provides:

"Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, indicate that it intends to exclude the application of one of the procedures provided in Article 9.1(a) and (b) in its relations with other parties".

The United Kingdom has indicated, in accordance with Article 3.3, that it intends to exclude the application of the procedure provided in Article 9.1(b). The nature and duration of any sentence, therefore, to be served in the United Kingdom as the administering State by a prisoner transferred here under the Convention is governed by the procedure for continued enforcement under Article 10 to the exclusion of the procedure for conversion of sentence under Article 11."

[6] As his Lordship went on to explain at pp 1052-3, the distinction between the two regimes was clearly illustrated by an explanatory report forming part of the travaux préparatoires to the Convention. Paragraphs 49 and 50 of that report provided as follows:

"49 Where the administering State opts for the 'continued enforcement' procedure, it is

bound by the legal nature as well as the duration of the sentence as determined by the sentencing State (paragraph 1): the first condition (legal nature) refers to the kind of penalty imposed where the law of the sentencing State provides for a diversity of penalties involving deprivation of liberty, such as penal servitude, imprisonment or detention. The second condition ("duration") means that the sentence to be served in the administering State, subject to any later decision of that State on, for example, conditional release or remission, corresponds to the amount of the original sentence, taking into account the time served and any remission earned in the sentencing State up to the date of transfer.

50 If the two States concerned have different penal systems with regard to the division of penalties or the minimum and maximum length of sentence, it might be necessary for the administering State to adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. Paragraph 2 allows that adaptation within certain limits: the adapted punishment or measure must, as far as possible, correspond with that imposed by the sentence to be enforced; it must not aggravate, by its nature or duration, the sanction imposed in the sentencing State; and it must not exceed the maximum prescribed by the law of the administering State. In other words: The administering State may adapt the sanction to the nearest equivalent available under its own law, provided that this does not result in more severe punishment or longer detention. As opposed to the conversion procedure under Article 11, under which the administering State substitutes a sanction for that imposed in the sentencing State, the procedure under Article 10.2 enables the administering State merely to adapt the sanction to an equivalent sanction prescribed by its own law in order to make the sentence enforceable. The administering State thus continues to enforce the sentence imposed in the sentencing State, but it does so in accordance with the requirements of its own penal system".

[7] The case of Read concerned a prisoner who had been convicted in Spain for serious currency offences. He was sentenced to a minimum custodial term of 12 years and 1 day, and on his subsequent repatriation under the 1984 Act the warrant specified that he must instead serve (the balance of) 10 years in custody, being the UK statutory maximum for such offences. On the prisoner's application for Judicial Review of that warrant, the Divisional Court proceeded on the basis that the designated custodial term should be arrived at by applying normal English sentencing guidelines and "tariffs" (under which an effective maximum might be only 4 years), and that in failing to recognise this the Secretary of State had misdirected himself.

[8] On appeal, for reasons depending principally on the UK's rejection of a substitutional approach under Article 11 of the Convention, the House of Lords overruled the Divisional Court and (in the words of Lord Bridge at p.1053):

"...where the court in a sentencing State imposes a sentence in excess of the maximum sentence prescribed by an English statute for a corresponding offence, the Secretary of State adapting the sentence under Article 10 of the Convention has power to reduce the sentence to that maximum but not further, and....where a court in the sentencing State imposes a sentence which does not exceed the English statutory maximum for a corresponding offence, the Secretary of State has no power to reduce the sentence".

The UK/Thai Agreement of 1990

[9] By Agreement between the UK and Thai governments dated 22 January 1990 and ratified on 6 February 1991, there were set forth particular arrangements for the inter-state transfer of offenders and for cooperation in the enforcement of penal sentences. Again, a primary purpose, as stated in the preamble and given effect in Article 2, was "...giving foreigners... the opportunity to serve their sentences within their own society". In describing conditions for the application of the Agreement, Article 3 confirmed inter alia that a relevant sentence might be for life, for an indefinite period on account of mental incapacity, or for a fixed period, and that no transfer might take place until the offender had served any minimum custodial sentence stipulated by the law of the transferring State. Article 4 laid down certain transfer procedures, including inter alia an obligation on the transferring State to provide the receiving State with information as to "...(3)(b)....the length of time already served by the offender and any credits to which he is entitled on account of work done, good behaviour, pretrial confinement or other reasons". So far as relevant for present purposes, Articles 5 and 6 went on to provide as follows:

" ARTICLE 5

Retention of Jurisdiction

In respect of sentences to be enforced pursuant to this Agreement , the transferring State shall retain exclusive jurisdiction regarding the judgments of its courts, the sentences imposed by them and any procedures for revision, modification or cancellation of those judgments and sentences.

ARTICLE 6

Procedure for Enforcement of Sentences

(1) The continued enforcement of the sentence after transfer shall be governed by the laws and procedures of the receiving State, including those governing conditions for service of imprisonment, confinement or other deprivation of liberty, and those providing for the reduction of the term of imprisonment, confinement or other deprivation of liberty by parole, conditional release, remission or otherwise.

(2) Subject to paragraph (3) of this Article, the receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State.

(3) No sentence of deprivation of liberty shall be enforced by the receiving State in such a way as to extend it beyond the period specified in the sentence of the court of the transferring State. Such enforcement shall as far as possible correspond with the sentence imposed in the transferring State.

(4) If the transferring State revises, modifies or cancels the judgment or sentence pursuant to Article 5 of this agreement or otherwise reduces, commutes or terminates the sentence, the receiving State shall upon being notified of the decision give effect thereto in accordance with this Article.

.... "

[10] As can be seen from these references, the Agreement broadly mirrored the regime under the Convention of 1983 as recently affirmed by the House of Lords in Read. In particular, while Article 6(1) appeared to provide for "continued enforcement" to be governed by the laws and procedures of the receiving State, paragraphs (2) and (3) made it clear that the receiving State was nevertheless bound by the "nature and duration" of the original sentence imposed and that "enforcement" must, as far as possible, correspond with that sentence. Articles 5 and 6(4) further reinforced the primacy of the original sentence, and its continuing susceptibility to revision, modification or cancellation at the hand of the transferring State.

Mr Gilbey's position

[11] While acknowledging these background considerations, Mr Macara QC, the solicitor advocate appearing for Mr Gilbey, invited me to fix an appropriate punishment part by reference to sections 2 and 10 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. For present purposes, it was said, that statute contained all relevant and necessary provisions, and the court must simply reach a decision by reference to Scottish domestic sentencing norms for an equivalent offence. In particular, the effect of subsections (1), (2), (3) and (4) of section 10 was to apply the ordinary punishment part regime, as introduced by the Convention Rights (Compliance) (Scotland) Act 2001, to various categories of "transferred life prisoner". Under subsection (4)(b)(ii) one of these categories was "...a person...who has been transferred to Scotland...in pursuance of...a warrant issued by the Secretary of State under the Repatriation of Prisoners Act 1984", and in that context subsections (2J) and (2K) provided the necessary procedural mechanism in these terms:

"(2J) There shall be a hearing at which the High Court of Justiciary shall make the order referred to in subsection (2K) below.

(2K) That order is an order specifying a part of the sentence which the court considers would have been specified as the punishment part under subsection (2) of section 2 of this Act, if -

(a) the prisoner had been sentenced for the offence in Scotland; and

(b) that section (as amended by the Convention Rights (Compliance)(Scotland) Act 2001....had been in force at the time when the prisoner was sentenced."

Subject to a limited exception which for present purposes was not material, subsections (2) and (3) then went on to apply Part I of the Act, encompassing all early release provisions,

"...as if ―

(a) the transferred life prisoner were a life prisoner within the meaning of section 2 of this Act; and

(b) the punishment part of his sentence within the meaning of that section were the part specified in the order under subsection (2J) above...".

[12] In Mr Macara's submission, section 10(2K) involved the statutory hypothesis of a Scottish life sentence, for which a punishment part could then be fixed in the ordinary way under section 2(2). For present purposes, therefore, the nature and characteristics of the Thai life sentence could be left out of account altogether. Under Article 6(1) of the 1990 Agreement "continued enforcement" of the Thai sentence had, of consent, been entrusted to Scots law and practice, and that plainly covered measures (such as the fixing of a punishment part) to regulate eligibility for parole or early release. For a determinate sentence (to which the decision in Read related) the early release provisions of section 1would apply automatically; where a life prisoner was transferred from England and Wales, the Isle of Man or Northern Ireland, section 10(1) and (1AA) automatically designated, as the relevant punishment part under section 2, the term specified in an existing order or notification pronounced within the jurisdiction concerned; but in relation to any other transferred life sentence a court hearing was necessary in order to fix an appropriate punishment part. Except where otherwise provided, the approach of the 1993 Act was truly substitutional, and in a case such as the present the incidents of a Thai life sentence (such as restricted parole entitlement) could not be allowed to influence the court's decision.

[13] It would, no doubt, be strange if a Scottish punishment part were to end up shorter, by several years, than the period which Mr Gilbey had already spent in a Thai prison, but if that was the result achieved under the 1993 legislation, then so be it. What mattered was that the overall life sentence continued unaffected, and this constituted adequate compliance by the Scottish Ministers with the repatriation regime under the 1984 Act.

[14] In support of his submissions, Mr Macara made reference to two English decisions, in closely analogous circumstances, where "tariffs" of 3 years and 18 months respectively were fixed. In the matter of Adelo Soyege 2005 EWHC 2648 (QB) concerned drug trafficking in Thailand comparable to the present, and the relevant transfer took place after some 8 years of a life sentence had already been served. The other case, Orobator v Governor of HMP Holloway and Another 2010 EWHC 58 (Admin), involved drug trafficking in Laos, and where the custodial term actually served prior to transfer was only 492 days it differed little from the "tariff" ultimately fixed. In both cases, the court had apparently proceeded on a straightforward application of domestic legislation, and without any discussion of the regime under the 1984 Act and relative Convention as authoritatively interpreted by the House of Lords in Read. The latter case was, however, briefly mentioned for other purposes at paragraphs 5 and 122 of the Orobator decision. According to Mr Macara, the approach taken by the English courts in these cases should be followed here, even though the relevant legislation south of the border (section 273(3) of the Criminal Justice Act 2003, as amended) might arguably involve a hypothesis rather different from that appearing in the 1993 Act, namely that the offence in question had been committed in England and Wales, and that a sentence had followed upon that.

Mitigation

[15] Mr Macara went on to address me on his client's personal circumstances, and on certain mitigating factors which the court was asked to take into account. Mr Gilbey was a single man of 47 who had lived most of his life in England. He had been repatriated to Scotland because all the family (his mother and sister) had moved north to live on the island of Bute. For many years he had worked for BOC in Sussex before leaving the UK in 1999 to travel abroad. His intended destination was Australia, but he was arrested in Thailand before getting that far. In the aftermath of the arrest, his trial went on for many months during which he was under threat of the death penalty. Indeed he had formally been sentenced to death before that was commuted to life imprisonment. That sentence of life imprisonment remained in force, and would continue to affect him for the whole of his natural life. Before being arrested he had no previous convictions, and at his trial he had maintained a defence (ultimately rejected) to the effect that he believed that the packages in his possession contained jewellery. The value of the drugs in the Far East might be lower than in the UK, and was not apparently a factor considered by the Thai courts for sentencing purposes. Mr Gilbey had only been a courier, and for a first offender playing such a limited role an appropriate determinate sentence in Scotland would be in single figures only. In all the circumstances, the court was asked to fix a punishment part in line with the English decisions, and in that connection there was no need for any Social Enquiry Report to be prepared.

The Crown's position

[16] For the Crown, the learned Advocate Depute hesitated to suggest any ready answer to the potential problem of reconciling the provisions of the 1993 Act with the international arrangements under which Mr Gilbey had been repatriated. On the one hand, it was at least arguable that the 1993 Act had been framed without taking such arrangements into account; that section 10(2) and (2K) of the Act might, like their English counterpart, envisage the assumption of a discretionary life sentence as if an equivalent offence had been committed in Scotland; that the "legal nature and duration" of a sentence might not include parole or early release arrangements or, in that context, a punishment part; and that it might be wrong to allow "the mind of the Thai court" to influence the assessment of a punishment part in Scotland.

[17] As against that, there was no obvious reason to ignore the repatriation regime under the 1984 Act, in terms of which the UK had deliberately excluded any domestic substitutional approach. On that basis the proper course would be to take the Thai sentence as a starting point and, only so far as necessary, adapt that to make it compatible with Scots law. The 1990 Agreement between the UK and Thai governments could be seen to follow the same pattern, stressing the primacy of the original sentence and the need to ensure that its enforcement corresponded, as far as possible, with the basis on which it was imposed in the transferring State. Since these were the international arrangements under which Mr Gilbey had been transferred to this country, the 1993 Act should, so far as possible, be construed in such a way as to be consistent with them.

[18] Significantly, the statutory hypothesis to be found in section 10(2) and (2K) of the 1993 Act was different from the issue raised under the equivalent English statute. In terms of section 273(3) of the Criminal Justice Act 2003, that issue was whether, if the relevant offence had been committed in England (my emphasis), the sentence would or would not have been fixed by law. This statutory difference might perhaps help to explain the domestic substitutional approach which had been adopted by courts south of the border in the cases of Soyege and Orobator. On no view, however, were these decisions binding in Scotland, and they should not be followed here. The important thing was to construe and apply the relevant provisions of the 1993 Act in such a way as to facilitate, rather than override, the international arrangements by virtue of which Mr Gilbey had been repatriated.

[19] Here, Article 2 of the 1990 Agreement (reflecting its preamble) envisaged a prisoner being transferred "...in order to serve the sentence imposed on him". Article 3(e) barred any such transfer "...unless he has served in the transferring State any minimum period of imprisonment...stipulated by the law of the transferring State". Article 4 required the transferring State to provide information as to inter alia "...(b) the termination date of the sentence, the length of time already served by the offender and any credits to which he is entitled on account of work done, good behaviour, pretrial confinement or other reasons". Articles 5 and 6(4) asserted the retained jurisdiction of the transferring State quoad judgments and sentences and their revision, modification or cancellation. And although Article 6(1) provided for "...continued enforcement of the sentence after transfer to be governed by the laws and procedures of the receiving State", including inter alia those providing for reduction of a term of imprisonment by parole, conditional release, remission or otherwise, the same Article by paragraphs (2) and (3) made it clear that the receiving State must nevertheless be "...bound by the legal nature and duration of the sentence as determined by the transferring State", and that enforcement of a sentence "...shall as far as possible correspond with the sentence imposed in the transferring State".

[20] Against the background of these provisions, the court would no doubt wish to be aware of the salient characteristics of a Thai life sentence. In particular, as confirmed by the competent authorities of the Kingdom of Thailand in a letter dated in May 2010,

• life imprisonment referred to "...the limiting of the rights and freedoms of prisoners in prisons/correctional institutions for an indeterminate period, with the condition that the prisoner shall remain in prison for life;
• such a sentence might, however, be reduced by Royal Pardon to a sentence for a determinate period of time;
• eligibility for parole would not arise until a high-level prisoner had served "...no less than 10 years in the case of life imprisonment"; and
• as a rule, life prisoners would not be considered for repatriation under the 1990 Agreement until at least 8 years of their sentence had already been served in Thailand.

[21] In addition, as confirmed by the same letter, life imprisonment was mandatory in Thailand on a conviction for producing, importing or exporting more than 3 grams of pure heroin, with death being the penalty for such actions where distribution of the drug was involved. The penalty for such offences involving less than 3 grams of heroin would lie between 4 and 15 years imprisonment. Internal distribution offences where the amount of heroin exceeded 20 grams would again be punishable by life imprisonment or death, and for lesser quantities the penalty would be a prison sentence of between 4 years and life.

[22] As regards the fixing of a punishment part in this particular case, however, the Crown would, as usual, wish to adopt a neutral stance and leave the exercise to the judgment of the court. In making submissions and providing information, the learned Advocate Depute had merely been concerned to assist the court, as far as possible, in response to the invitation extended during the course of the hearing.

Discussion

[23] In my opinion the exercise of fixing a punishment part appropriate to a commuted Thai death sentence (as in this case), raises issues of real difficulty and importance concerning the interaction between, on the one hand, the punishment part regime under the 1993 Act and, on the other, the international arrangements by virtue of which Mr Gilbey's recent repatriation took place. These arrangements are contained, not merely within the Convention of 1983 on which the 1984 Act was based, but also within the parallel Agreement concluded between the UK and Thai governments in 1990.

[24] In Mr Gilbey's favour it may be acknowledged that Article 6(1) of the 1990 Agreement bears to entrust the continued enforcement of sentences to the laws and practices of the receiving State; that the fixing of a punishment part under the 1993 Act is essentially a domestic exercise; that in amending the 1993 Act the Convention Rights (Compliance) (Scotland) Act 2001 did not self-evidently take account of the international repatriation regime; that section 10(2) and (2K) of the 1993 Act may be taken to postulate some sort of sentencing exercise in Scotland; that Mr Gilbey's offence, had it been committed in Scotland, would not in practice have attracted a life sentence despite the statutory maximum notionally available for Class A controlled drugs offences; that a domestic determinate sentence for such an offence would probably have expired by now, even without taking statutory early release provisions into account; and that in broadly comparable circumstances English courts in Soyege and Orobator have felt it appropriate to fix "tariffs" pursuant to ordinary domestic sentencing norms.

[25] In my judgment, however, these considerations fall well short of providing an acceptable solution to the problem with which the court is faced in a case of this kind. Much more compelling, as it seems to me, are the various factors which tend to point in the other direction and militate against a domestic substitutional approach. These may be briefly summarised as follows:-

(i) On the authority of the House of Lords in Read, repatriation arrangements under the 1984 Act and the underlying Convention of 1983 should not be seen as simply opening the door to a domestic substitutional sentence. On the contrary, the UK at that time deliberately elected for an approach which favoured recognition of a foreign sentence and permitted its adaptation no further than might be necessary to make it compatible with domestic law. In terms of section 3(3)(b) of the 1984 Act, the relevant Minister must inter alia have regard to the inappropriateness of including provisions in a warrant which are framed without reference to "...the length of the period during which the prisoner is, but for the transfer, required to be detained in (the transferring State)". As Lord Bridge pointed out in Read at p.1048, a foreign conviction may arise out of conduct which, in a domestic context, would not have been criminal at all, or alternatively the foreign sentence to be served out following repatriation may far exceed any domestic sentence which might have been imposed for a comparable offence. Yet the repatriation regime must be capable of adaptation to meet the demands of all such cases.

(ii) Articles 5 and 6(2) - (4) of the 1990 Agreement similarly (and, for present purposes, more pertinently) assert the primacy of the transferring State's convictions and sentences. In particular, they stipulate that the receiving State is to be "... bound by the legal nature and duration of (an original sentence)", and that continued enforcement after transfer "...shall as far as possible correspond with the sentence imposed in the transferring State." No doubt there is room for argument as to the intended scope of the phrase "legal nature and duration" as used in Article 6(2), but in this case, interestingly, Annex C to the letter addressed by the Scottish Prison Service to the Thai Ministry of Foreign Affairs on 8 October 2009 (one of the important repatriation documents on which consents were based) includes parole and early release arrangements within a "STATEMENT OF THE NATURE AND DURATION OF THE SENTENCE TO BE SERVED BY JULIAN GILBEY IF TRANSFERRED TO SCOTLAND". On that basis Mr Gilbey's restricted eligibility for parole as a life prisoner in Thailand might arguably be covered by Article 6(2), but even if that were not so it seems clear that such a feature would fall within the ambit of Article 6(3) as read in conjunction with Article 6(1).

(iii) Recognising that under such Articles the continued enforcement of part-served sentences has (at least to some degree) been entrusted to the laws and practices of this country, it is in my view of fundamental importance to identify the relevant laws and practices and ascertain precisely how they are intended to operate. In that regard, I consider that the learned Advocate Depute was well-founded in submitting that those provisions of the 1993 Act which bear to regulate the position of prisoners repatriated from abroad ought, so far as possible, to be construed and applied in a manner consistent with the international arrangements but for which there would have been no relevant repatriation and the Act would not have been brought into play. Consistently with that approach, section 10(2) and (2K) of the 1993 Act refer simply to "...the offence" and "...the sentence" in what would appear to be a non-domestic context. For present purposes, in other words, attention is directed to Mr Gilbey's offence in Thailand, and to the Thai life sentence which he must now, under international arrangements, serve out. Under Article 5 of the 1990 Agreement, of course, any punishment part fixed here may be affected, or even superseded, in the event of the original sentence being revised, modified or cancelled in Thailand.

(iv) It is not, I think, without significance that a domestic substitutional approach is positively excluded by section 10(1) and (1AA) of the 1993 Act quoad life prisoners transferred from England and Wales, the Isle of Man and Northern Ireland. In such cases the "tariff" already set in the transferring jurisdiction continues to apply even though (a) there is no necessary parity between such "tariffs" and Scottish punishment parts, and (b) an English "whole life tariff" would have to be administered here even though an equivalent punishment part would be incompetent under section 2(3A)(a) of the 1993 Act.

(v) In accordance with what would appear to be normal Thai practice, the possibility of Mr Gilbey's being repatriated under the 1984 Act and parallel Agreement was not considered until he had served at least 8 years of the backdated life sentence which ran with effect from 19 October 2001. More importantly, as confirmed by the competent authorities of the Kingdom of Thailand in May of this year, Mr Gilbey was not at any stage eligible for parole prior to the date of his repatriation. Indeed, no such eligibility could have arisen under Thai law until he had served no less than 10 years of his life sentence.

(vi) In such circumstances, as it seems to me, a short-term punishment part fixed here along domestic substitutional lines would directly controvert the reality of Mr Gilbey's pre-transfer situation, namely that he was emphatically not eligible for parole or early release while in Thai custody, and that no Royal Pardon came his way. Under the relevant international arrangements, the proper role of a receiving State and its courts is in my view to administer the continued enforcement of a foreign sentence in the post-transfer period, and on that basis I would regard it as inappropriate to fix a punishment part any shorter than the period of imprisonment already served by Mr Gilbey in Thailand up to the date of his repatriation.

(vii) As regards the statutory hypothesis appearing in section 10(2) and (2K) of the 1993 Act, I consider that that may properly be seen as jurisdictional only, in the sense of deeming the Convention Rights (Compliance) (Scotland) Act 2001 to have been in force, and applicable, as at the sentencing date for the purposes of the punishment part exercise. Without some such provision it would not be open to the court to fix a punishment part in a repatriation case, and in my view it is significant that the relevant subsections go no further than necessary to establish the court's entitlement. The restricted jurisdictional nature of the hypothesis is, I think, also evident from its focus on the prisoner's personal situation, from the juxtaposition of its two complementary parts, and from the fact that, unlike corresponding provisions within the Criminal Justice Act 2003, neither subsection ex facie bears to involve any assumption as to an offence having been committed in Scotland, nor for that matter as to any conviction having been recorded here. As previously observed, references to "the offence" and "the sentence" plainly direct attention to the Thai offence and life sentence in respect of which Mr Gilbey was repatriated. And, as Mr Macara quite rightly pointed out, had Mr Gilbey's offence been committed and prosecuted in Scotland, it would under domestic norms have attracted a moderate determinate sentence and no question of a life sentence, discretionary or otherwise, would have arisen at all.

(viii) To my mind, a further difficulty arises in connection with the categorisation of Mr Gilbey's Thai life sentence. Under Thai law it does not appear to have been discretionary in any sense familiar to Scots law and practice. Here, a discretionary lifelong disposal may be regarded as appropriate where an offender's conduct, or the risk which he poses to the public, is deemed too serious for a sentence of determinate length. It represents a significant escalation of penalty, in other words, and, consistently, those parts of section 2(2) of the 1993 Act which concern the assessment of punishment parts for discretionary life sentences or, more commonly nowadays, orders for lifelong restriction, require account to be taken of inter alia

"...the period of imprisonment, if any, which the court considers would have been appropriate for the offence had the court not sentenced the prisoner to imprisonment for life, or as the case may be not made the order for lifelong restriction, for it".

By contrast, according to the information recently obtained by the Crown from the Thai authorities, life imprisonment was a mandatory minimum sentence for Mr Gilbey's offence, with only the imposition or commutation of a death sentence being in any real sense discretionary. Mr Gilbey's commuted life sentence thus apparently represented a significant reduction of penalty by comparison with the original sentence of execution, and no question of any lesser determinate sentence could have arisen. In these circumstances I am not persuaded that the discretionary life sentence provisions contained within section 2(1) and (2) of the 1993 Act could sensibly be applied in a case like the present.

(ix) An additional difficulty which would arise if a Scottish discretionary life sentence had to be assumed (contrary to the views expressed above), is that the relevant offence would then have to be deemed so serious as to render life imprisonment an appropriate domestic disposal. For an offence of such extreme seriousness, it might be thought that a corresponding determinate sentence would have to be very high indeed, and certainly out of all proportion to any sentence which could ever have been contemplated if Mr Gilbey's offence had been committed in Scotland. Recognising and adapting the Thai life sentence would not, on the other hand, appear to present any such difficulty.

(x) For present purposes, I am unable to regard the English decisions to which I was referred as being of any particular assistance. For one thing, they proceeded under different statutory provisions which arguably (albeit for a limited purpose) involved the hypothesis of a relevant offence being committed in England and Wales. More importantly, however, the court in Soyege does not appear to have been referred to the decision of the House of Lords in Read, nor to have considered the potential difficulty of reconciling relevant international arrangements with the domestic provisions concerned with the fixing of "tariffs". Similarly, while Read is certainly mentioned by the Administrative Court for other purposes in Orobator (notably at paras 10 and 122), it receives no mention in the later section (from para 125 onwards) where the relevant "minimum term" or "tariff" assessment appears. Equally, neither decision bears to address the potential problem of a short-term "tariff" encroaching beyond continued (i.e. post-transfer) enforcement and into the pre-transfer period in cases where, under the law of the transferring State, a prisoner has no eligibility for parole at all. As regards Orobator, this point may be of limited significance having regard to the very short period which preceded the prisoner's repatriation from Laos, but the outcome in Soyege is harder to accept where the fixing of a 3-year "tariff" amounted to a declaration of eligibility for parole some 5 years before the prisoner's transfer to the UK - a period during which she was categorically ineligible for parole under Thai law. Interestingly that was a case where, in advance of repatriation, the Lord Chief Justice apparently advised that, in his opinion, a "tariff" of 12 years might be thought appropriate.

(xi) More generally, it must be remembered that the international arrangements which apply in cases such as the present reflect a commitment to mutual respect and recognition between or among the governments and legal systems of participating States. Maintaining such laudable objectives is of practical significance, not merely to the States concerned, but also to those individuals who might benefit from appropriate repatriation arrangements. From their point of view, any State conduct failing to reflect the necessary levels of respect and recognition may carry a serious risk of international cooperation being reduced or even withdrawn, and if any such risk were to materialise prisoners such as Mr Gilbey might be very much worse off than they are now. Against that background I would not, for my part, be prepared to fix a punishment part of a length which might, in Thailand, be regarded as derisory by comparison with the long-term ineligibility for parole which characterised the sentence actually imposed.

Conclusion

[26] Drawing all these various threads together, I confirm that in my view it would not be appropriate to fix any punishment part for Mr Gilbey shorter in length than the period which he actually spent in Thai custody between October 2001 and the beginning of this year. But the matter does not end there. For the reasons given, I do not consider that there is any realistic alternative but to go further and fix Mr Gilbey's punishment part at 10 years, corresponding "as far as possible" to the essential characteristics of the original sentence and, in particular, to the earliest date at which Mr Gilbey might have become eligible for parole had he remained in Thai custody rather than being repatriated to this country. By contrast a domestic substitutional punishment part, however calculated, would to my mind altogether ignore the existence and characteristics of the Thai life sentence, and it is hard to see how such an approach could legitimately be thought compatible with the international arrangements without which Mr Gilbey would still be in Thailand. Judging by the information placed before the court during the hearing, retribution and deterrence are important elements in the Thai approach to sentencing, and I can find nothing in the 1993 Act which would prevent me from confirming 10 years as an appropriate punishment part to serve these purposes in this case. That 10-year period will, of course, run from 19 October 2001, the date to which Mr Gilbey's commuted life sentence was backdated.