APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Hardie Lord Wheatley	[2011] HCJAC 30 Appeal No: XC530/10 OPINION OF THE COURT delivered by LORD REED in APPEAL by JULIAN GILBEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: M Macara, Q.C.; Paterson Bell, Edinburgh

Respondent: G Allan, Q.C. A.D.; Crown Agent

30 March 2011

Introduction

[1] On 19 October 2001 the appellant, who is a British citizen, was arrested at Don Muang Airport in Thailand as he was about to board a flight to Taiwan. In his possession was a travelling bag containing packages of high purity heroin with a total weight of over 3.3kg. After trial, the appellant was on 19 September 2002 convicted of drug trafficking offences. As he had accepted his guilt at the stage of the arrest and police enquiries (although not at the trial), and had given evidence in a way which was considered beneficial to the court proceedings, the death sentence which would otherwise have been imposed was reduced to one of life imprisonment.

[2] The appellant served his sentence in Thailand until February 2010, when he was transferred to Scotland in pursuance of a warrant issued by the Scottish Ministers under the Repatriation of Prisoners Act 1984, as amended. His case was then referred by the Scottish Ministers to the High Court of Justiciary. For reasons we shall explain, the reference has been treated as one made under section 10(2A) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended. A hearing under section 10(2J) of that Act then took place. Following that hearing, the court made an order under section 10(2K) of that Act specifying a period of ten years, to date from 19 October 2001, as the part of the appellant's life sentence which would have been specified as the punishment part under section 2(2) of the Act if the appellant had been sentenced for the offence in Scotland. The appellant now appeals to this court against that order.

The agreement with Thailand

[3] It is convenient to begin by considering the international instrument under which the appellant was repatriated. The Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Thailand on the Transfer of Offenders and on Co-operation in the Enforcement of Penal Sentences (Cm1119, 1990), executed in Bangkok on 22 January 1990, is intended, as appears from its recitals, to give foreigners who are deprived of their liberty as a result of their commission of a criminal offence the opportunity to serve their sentences within their own society. Article 2, headed "General Principles" provides:

"A person sentenced in the territory of one Party may be transferred to the territory of the other Party in accordance with the provisions of this Agreement in order to serve the sentence imposed on him".

Article 3, which is concerned with the scope of application of the agreement, expressly applies the agreement to offenders sentenced to imprisonment for life (Article 3(d)(i)). Article 4 is concerned with the procedure for transfer. It provides, in paragraph (3), for the transferring state to provide the receiving state with the following information:

"(a) a statement of the facts upon which the sentence was based;

(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;

(c) a certified copy of all judgements and sentences concerning the offender from the date of his detention in the transferring State, and the law on which they are based;

(d) any other additional information requested by the receiving State".

Article 5, headed "Retention of Jurisdiction", provides:

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

Article 6 is headed "Procedure for Enforcement of Sentence". The following provisions are of particular importance in the present case:

"(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 judgement 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".

[4] It is apparent, particularly from Articles 2, 5 and 6, that the intention of the agreement is that offenders who are transferred will continue to serve the sentence imposed in the transferring state, rather than a sentence imposed in the receiving state. The enforcement of the sentence after transfer is however governed by the laws and procedure of the receiving state (Article 6(1)). That applies, in particular, to the laws and procedures of the receiving state providing for the reduction of the term of imprisonment, confinement or other deprivation of liberty by parole or conditional release (ibid).

The relevant legislation

The Repatriation of Prisoners Act 1984

[5] In domestic law, provision is made for the transfer of prisoners between the United Kingdom and other countries by the 1984 Act, as amended. As was noted by Lord Bridge of Harwich in R v Secretary of State for the Home Department, ex parte Read [1989] 1 AC 1014 at pages 1047-1048, the Act is framed in terms which would enable it to be operated in accordance with any international arrangements which the United Kingdom Government may make with other countries. Section 1 makes provision for the issue of a warrant by the relevant Minister (that expression being defined as meaning the Scottish Ministers in a case where a prisoner is to be transferred to Scotland) when agreement has been reached with the transferring state and with the prisoner, on the transfer of a prisoner to the United Kingdom in accordance with international arrangements.

[6] Section 3(1) provides that the effect of such a warrant shall be to authorise:

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

(b) the taking of the prisoner to such place in any part of the United Kingdom, being a place at which effect may be given to the provisions contained in the warrant by virtue of paragraph (c) below, as may be specified in the warrant; 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".

In broad terms, the remaining provisions of section 3 equiparate a provision contained in a warrant by virtue of subsection (1)(c) to a warrant for detention issued by a criminal court in the United Kingdom. In particular, subsections (2) and (4) provide:

"(2) Subject to section 4(2) to (4) below, a provision shall not be contained by virtue of subsection (1)(c) above in a [warrant under section 1] unless it satisfies the following two conditions, that is to say -

(a) it is a provision with respect to the detention of a person in a prison, a hospital or any other institution; and

(b) it is a provision which at the time the warrant is issued may be contained in an order made either -

(i) in the course of the exercise of its criminal jurisdiction by a court in the part of the United Kingdom in which the prisoner is to be detained; or

(ii) otherwise than by a court but for the purpose of giving effect to an order made as mentioned in sub-paragraph (i) above.

......

(4) Subject to subsection (6) below and the Schedule to this Act, a provision contained by virtue of subsection (1)(c) above in a [warrant under section 1] shall for all purposes have the same effect as the same provision contained in an order made as mentioned in sub-paragraph (i) or, as the case may be, sub-paragraph (ii) of subsection (2)(b) above".

It is also relevant to note section 3(3), which is concerned with the duration of detention in the United Kingdom:

(3) In determining for the purposes of paragraph (c) of subsection (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".

It appears from subsection 3(b)(ii), in particular, that the relevant Minister is required to have regard to the inappropriateness of framing the warrant without reference to the period which will have been served by the prisoner when the provisions in the warrant take effect, to the extent that it appears to him consistent with the relevant international arrangements to do so. It is also important to note subsection (5):

"(5) A provision contained by virtue of subsection (1)(c) above in a warrant under this Act shall take effect with the delivery of the prisoner to the place specified in the warrant for the purposes of subsection (1)(b) above".

Finally, in relation to section 3, subsection (7) gives effect to Part 1 of the Schedule to the Act.

[7] The Schedule is of particular importance to the present case. Paragraph 2, as it applies in relation to Scotland, is concerned with the application of the early release provisions contained in the 1993 Act to prisoners transferred to Scotland. Subparagraph (1) provides:

"In determining, for the purposes of sections 1(1) to (3), 1AA, 2(2) and (7), 3AA and 7(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9), in their application to prisoners repatriated to Scotland (eligibility for early release from a sentence), whether the prisoner has at any time served a particular proportion or part of the sentence, the sentence shall, subject to sub-paragraph (2) below, be deemed to begin with the day on which the relevant provisions take effect".

The expression "the relevant provisions" is defined by paragraph 1 as meaning the provisions contained in the warrant by virtue of section 3(1)(c) of the 1984 Act. The expression "sentence" is defined by paragraph 2(5) as meaning the provision included in the warrant which is equivalent to a sentence. As we have explained, the relevant provisions "take effect" when the prisoner is delivered to the place specified in the warrant for the purpose of detention: section 3(5). The effect of paragraph 2(1)is therefore that in determining, for the purposes of the early release provisions referred to, whether a repatriated prisoner has served a particular proportion or part of his sentence, the sentence is taken to be the period (determinate or indeterminate) for which the warrant authorises his detention, and, subject to paragraph 2(2), he is deemed to begin serving that sentence on the date when he is delivered to the place specified in the warrant as the place where he is to be detained.

[8] If paragraph 2(1) stood alone, it would follow that the early release provisions would be operated without regard to the period served in the transferring state, or, in the case of a determinate sentence, the length of the sentence imposed by the transferring state. Those matters are however addressed by paragraph 2(2):

"(2) If the warrant specifies a period to be taken into account for the purposes of section 1(3) or 2(2) or (7) or 3AA of that Act (eligibility of long-term and life prisoners as respects release on licence) -

(a) the amount of time the prisoner has served; and

(b) where the sentence is a determinate one, the sentence,

shall, so far only as the question whether he has served any particular proportion or part of the sentence is concerned, be deemed to be increased by that period".

The Prisoners and Criminal Proceedings (Scotland) Act 1993

[9] Further provision in relation to prisoners who have been transferred to Scotland, pursuant to a warrant issued under the 1984 Act, is made by the 1993 Act, as amended. In particular, section 10 is concerned with "transferred life prisoners", an expression defined by subsection (4) as including a person on whom a court in a country or territory outside Scotland has imposed a sentence of imprisonment for an indeterminate period and who has been transferred to Scotland, in pursuance of a warrant issued under the 1984 Act, to serve the remainder of his sentence there. Subsections (1) and (1A) are concerned with life prisoners transferred from England and Wales, the Isle of Man and Northern Ireland. Subsection (2) applies to other transferred life prisoners, and provides:

"(2) In the case of any other transferred life prisoner, being one whose transfer occurred after the coming into force of section 3 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), subsection (3) below applies where the court, following a hearing under subsection (2J) below, makes an order under that subsection 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 section 3 of the Convention Rights (Compliance) (Scotland) Act 2001) had been in force at the time when the prisoner was sentenced."

The procedure to be followed in relation to a hearing under subsection (2J) is laid down in subsections (2A) and following. The material provisions for present purposes are as follows:

"(2A) The Scottish Ministers shall, as soon as reasonably practicable after the transferred life prisoner is transferred to Scotland, refer the case of the transferred life prisoner to the High Court of Justiciary for a hearing under subsection (2J) below.

...

(2J) The Scottish Ministers shall, no later than two weeks after the referral of a transferred life prisoner's case under subsection (2A) or (2E) above, send the documents and other information mentioned in subsection (2G) below to -

(a) the High Court of Justiciary;

(b) the Lord Advocate; and

(c) the transferred life prisoner.

(2G) The documents and other information referred to in subsection (2F) above are -

(a) a copy of the indictment or any corresponding document;

(b) subject to subsection(2H) below, a copy of any report by the trial judge;

(c) a copy of any certificate or direction referred to in subsection (2D) above; and

(d) any other documents or information which the Scottish Ministers consider relevant."

In relation to the hearing itself, subsections (2J) and (2K) provide:

"(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 (asp 7) had been in force at the time when the prisoner was sentenced."

Where the court makes an order under subsection (2J), it follows from subsection (2) that subsection (3) then applies. It provides:

"(3) In a case to which this subsection applies (whether by virtue of subsection (2) above or of subsection (2B) above), this Part of this Act except section 2(9) shall apply 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, or as the case may be in the certificate or direction referred to in subsection (2D) above."

It follows from subsection (3) that, where an order has been made by the court under subsection (2J), the part of the sentence specified in the order is treated as if it were a "punishment part" for the purposes of the provisions of section 2 of the 1993 Act, relating to release on licence.

The present case

[10] In the present case, the appellant was transferred to Scotland in pursuance of a warrant issued on behalf of the Scottish Ministers under section 1 of the 1984 Act. The warrant authorised any person acting under the orders of the Governor of HMP Barlinnie to bring the appellant into the United Kingdom from Thailand and to take him to that prison and deliver him to the Governor. The warrant further authorised the Governor:

"to receive the said prisoner into his custody and detain the said prisoner in accordance with the following provisions of this warrant:- The term the prisoner is to serve shall be life imprisonment".

[11] Relating the warrant to the statutory provisions which we have discussed, and in particular those contained in paragraph 2 of the Schedule to the 1984 Act, it appears that time is to be computed for the purposes of sections 2(2) and (7) of the 1993 Act, governing the early release of life prisoners, as if the appellant had begun to serve a sentence of life imprisonment on the date in February 2010 when he was delivered to HMP Barlinnie. The warrant did not specify any period to be taken into account in accordance with paragraph 2(2) of the 1984 Act, and thus contained no provision enabling the period served in Thailand to be taken into account. Counsel were unable to suggest any possible reason for this omission, other than oversight on the part of the Scottish Ministers. If the warrant requires to be varied, or revoked and a new warrant issued, that is a matter falling outside the scope of the present appeal.

[12] On 10 March 2010 the appellant's case was referred by the Scottish Ministers to the High Court of Justiciary. The reference bore to be made under paragraph 51 of the Schedule to the Convention Rights (Compliance) (Scotland) Act 2001. That provision was not however relevant to the appellant: it applied to life prisoners who had been transferred to Scotland prior to the entry into force of the relevant provisions of that Act. The reference has however been treated as if it had been made under the correct provision, namely section 10(2A) of the 1993 Act. The reference was accompanied by relevant documents and information, in accordance with section 10(2F) and (2G).

[13] The hearing under section 10(2J) proceeded on 30 March 2010, but was continued to further hearings on 27 and 28 May 2010 in order for the court to be more fully addressed on the relevant law. On 16 July 2010 the court ordered:

"That a period of ten years from 19 October 2001 be specified as the punishment part of the above sentence under section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 as amended, before his release on licence."

[14] We observe that that order was inept in specifying a date from which the specified period was to run, and a fortiori in specifying 19 October 2001 as that date. As we have explained, the effect of paragraph 2(1) of the Schedule to the 1984 Act is that the appellant's sentence is deemed, in determining the time which he has served for the purposes of sections 2(2) and (7) of the 1993 Act, to run from the date when he was delivered to HMP Barlinnie: if account is to be taken of the period served in Thailand, that period should be specified in the warrant in accordance with paragraph 2(2) of the Schedule to the 1984 Act, so that the amount of time the appellant has served can be deemed to be increased by that period when determining whether he has served the part of the sentence specified by the court under section 10(2K) of the 1993 Act.

[15] The sentencing judge explained his reasons for selecting a period of ten years in an opinion dated 16 July 2010. It is apparent from his opinion that he had not been fully or accurately addressed on the legislation. In particular, it appears that his attention had not been drawn to the Schedule to the 1984 Act.

[16] In the circumstances, it is necessary for us to consider of new the appropriate period to specify under section 10(2K) of the 1993 Act. We have summarised the circumstances of the offence. It is also relevant to note that the appellant was, at the time of the offence, a 34 year old man with no previous convictions. If the appellant had been sentenced for the offence in Scotland, the period of imprisonment necessary to satisfy the requirements of sentencing and deterrence would in our opinion have been a period of ten years. In the light of the decision in Petch and Foye v HM Advocate [2011] HCJAC 20, the punishment part would be one half of that period.

[17] For the foregoing reasons we shall allow the appeal, quash the order made on 16 July 2010, and make an order under section 10(2K) of the 1993 Act specifying a period of five years.