Bristow v The Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lord Justice McCombe,Master Of The Rolls |
| Judgment Date | 17 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1170 |
| Date | 17 November 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2014/1158 |
[2015] EWCA Civ 1170
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
LORD JUSTICE MOSES AND MR JUSTICE MACKAY
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master Of The Rolls
Lord Justice Davis
and
Lord Justice McCombe
Case No: C1/2014/1158
Hugh Southey QC and Jude Bunting (instructed by Stevens Solicitors) for the Appellant
James Strachan QC (instructed by the Government Legal Department) for the Respondent
Hearing dates: 3 rd November 2015
Introduction
The appellant, Steven Bristow, was sentenced on 6 May 2004 by a court in Thailand to a very lengthy term of imprisonment for drugs offences committed in Thailand. He was transferred to a prison in the United Kingdom on 13 July 2011, pursuant to the provisions of the Repatriation of Prisoners Act 1984 and the relevant bilateral agreement with Thailand. He was released on licence on 23 August 2013.
These judicial review proceedings were commenced as long ago as 11 October 2011. The appellant maintains that he had been the victim of discriminatory treatment, contrary to Article 14 of the European Convention on Human Rights, when his situation is compared in particular with the potential early release dates available to those repatriated prisoners convicted of violent or sexual offending. He in addition seeks to pursue a ground to the effect that there also has been a breach of his rights under Article 5 of the Convention.
The appellant's claim was dismissed by the Divisional Court (Moses LJ and Mackay J) on 16 October 2013. Permission to appeal was granted by Christopher Clarke LJ, after an oral hearing, on 11 December 2014.
The appellant was represented before us by Mr Hugh Southey QC leading Mr Jude Bunting. The respondents were represented before us by Mr James Strachan QC.
Background facts
The sentence imposed on the appellant in Thailand on 6 May 2004 was in respect of offences of possession of amphetamine and cannabis with intent to supply and also possession of a forged passport. The sentence was one of 26 years 6 months imprisonment, with credit for time spent on remand in custody. That the sentence was far longer than would have been imposed in the English courts for such offending is in legal terms immaterial to the present arguments.
It is a requirement under Thai law that a prisoner must normally serve four years or one third of the sentence in prison before being considered for repatriation to his home country to serve the balance of his sentence.
In 2007 the appellant made enquiries about transfer to the United Kingdom. The necessary procedures were initiated. However, although the authorities were agreeable to such transfer, in November 2007 the appellant indicated that he wished to defer consenting to transfer: it appears that in part was because he was hoping that there might be a forthcoming Royal Amnesty which would reduce his sentence.
In July 2008 the appellant indicated renewed interest in transfer. This, for whatever reason, was not then pursued: but at all events by June 2010 the appellant was reactivating his application for transfer and seeking updated information as to how his sentence would thereafter be administered in the United Kingdom.
In due course the United Kingdom, the Thai Government and the appellant himself gave formal consent to such transfer (the appellant's consent being given in writing on 12 January 2011). He was transferred to the United Kingdom on 13 July 2011. By this time, the sentence had been reduced, by reason of intervening Royal Amnesties in 2006, 2007 and 2008 to one of 17 years 9 months and 25 days (with deduction of time spent on remand in custody). The applicable warrant authorised continued detention in the United Kingdom of 3273 days. There also have been further amnesties, such that not only was the appellant released on licence on 23 August 2013 but, as we were told, his entire sentence (and licence) expired on 9 October 2015.
It is to be noted that at all stages the appellant had been accurately informed (in 2007, 2008 and 2010) of the potential release dates applicable to him, under the statutory regimes for the time being in force, if he were repatriated at those times to the United Kingdom to serve the balance of his sentence. In particular, in the context of his actual transfer the United Kingdom Government had stated in writing, in October 2010, that under the provisions applicable in England and Wales the appellant would automatically be released from custody on licence once he had served one half of the balance of his sentence remaining at the date of transfer. The consent of the Thai Government to the transfer, and indeed of the appellant himself, had been given on that basis.
The statutory framework
A crystal clear and very full exposition of the effect of the relevant statutory provisions in this context is contained in the judgment of Moses LJ (with whom Mackay J agreed) in the court below: [2013] EWHC 3094 (Admin). That being so, no more than a relatively brief summary is called for here.
The statutory provisions sanctioning repatriation of prisoners detained abroad, in accordance with international agreements, are contained in the Repatriation of Prisoners Act 1984. One primary policy purpose of that Act is "the obviously humane and desirable one of enabling persons sentenced for crimes committed abroad to serve out their sentences within their own society which, irrespective of the length of sentence, will almost always mitigate the rigour of the punishment inflicted": see R v Secretary of State for the Home Departmentex p. Read [1989] AC 1014 at p 1048 (Lord Bridge).
By reference to this Act the United Kingdom has a significant number of international agreements with other countries. The terms of such agreements frequently can vary.
The agreement with Thailand was made on 22 January 1990 and came into effect on 6 February 1991. It among other things makes it clear that the transferring state retains exclusive jurisdiction concerning judgments and sentences; whereas the continued enforcement after transfer is governed by the laws and procedures of the receiving state. This therefore includes matters such as early release.
As to early release, there have over the years been various changes introduced by Parliament. For present purposes, it comes to this.
i) By virtue of provisions contained in the Criminal Justice Act 1991, long term prisoners — that is, prisoners serving sentences of four years or more — were entitled to be considered for parole after serving one-half of their sentence and were entitled to automatic release on licence after serving two-thirds of their sentence.
ii) As applied to repatriated prisoners, by reference to the terms of Schedule 2 to the 1984 Act, this meant that such prisoners, after transfer, could be considered for parole after serving one-half of the total sentence imposed by the transferring state. But automatic release was calculated by reference to the balance of the sentence remaining to be served at the date of transfer.
iii) With effect from 4 April 2005, by virtue of the provisions of the Criminal Justice Act 2003 there ceased to be eligibility for parole for prisoners serving determinate sentences: instead, such prisoners would be entitled to be released on licence after serving half the total sentence. However, such provisions did not apply to those sentenced for specified sexual or violent offences. Further, such provisions did not apply to those convicted of offences committed before 4 April 2005.
iv) Schedule 2 of the 1984 Act was duly amended to give effect to these new provisions. It follows that since the appellant had been convicted and sentenced before 4 April 2005 — he having, moreover, received a lengthy determinate term for offences which were not specified sexual or violent offences — he at the time, if transferred, would have continued, on transfer, to be within the regime set by the Criminal Justice Act 1991.
v) Further changes, however, were introduced by the Criminal Justice and Immigration Act 2008 with effect from 9 June 2008. This, broadly speaking, extended the entitlement to release on licence after service of half the total sentence to all determinate term prisoners (even for those convicted of offences committed before 4 April 2005). However, this still did not apply to prisoners who had committed specified sexual or violent offences: their entitlement to release remained at the two-thirds mark, albeit with continued eligibility to be considered for parole after serving one-half of their total sentence.
vi) By further amendment to Schedule 2 of 1984 Act, these further changes were also applied to repatriated prisoners: with the effect that (unless they had committed specified sexual or violent offences) they would be entitled to release after serving one half of the balance of the sentence remaining at the date of transfer. But there was one exception to this. That related to those transferred prisoners who had given consent to transfer, and the warrant was issued, before 9 June 2008. For such prisoners Schedule 2 of the 1984 Act was amended to give them an entitlement to early release on licence after half the total term of their sentence had been served (not, as with others, half the balance of the term remaining to be served on transfer). The reason for this differentiation, as the Divisional Court pointed out, is not hard to seek. Such prisoners who had given their consent to transfer...
To continue reading
Request your trial
-
R (on the application of Stott) v Secretary of State for Justice
...the particular release arrangements that form part of the administration of the sentence. More assistance can be obtained from R (Bristow) v Secretary of State [2013] EWHC 3094 (Admin) (later affirmed in the Court of Appeal [2015] EWCA Civ 1170) and R (Massey) v Secretary of State for Jus......
-
R (on the application of Stott) v Secretary of State for Justice
...the particular release arrangements that form part of the administration of the sentence. More assistance can be obtained from R (Bristow) v Secretary of State [2013] EWHC 3094 (Admin) (later affirmed in the Court of Appeal [2015] EWCA Civ 1170) and R (Massey) v Secretary of State for Jus......
-
Jetmir Bucpapa v Secretrary of State for Justice
...of State for the Home Department ex parte Read [1989] AC 1104 at page 1048 (Lord Bridge) cited with approval by Davis LJ in Bristow v Secretary of State for Justice [2015] EWCA Civ 1170 at paragraph 12. UK – Albania Bilateral Prisoner Agreement 10 The application of the 1984 Act is dependen......