Jetmir Bucpapa v Secretrary of State for Justice
| Jurisdiction | England & Wales |
| Judge | HHJ McKenna |
| Judgment Date | 27 July 2017 |
| Neutral Citation | [2017] EWHC 1895 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5632/2016 |
| Date | 27 July 2017 |
[2017] EWHC 1895 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge McKenna
Case No: CO/5632/2016
Philip Havers QC and Adam Wagner (instructed by Duncan Lewis) for the Claimant
Christopher Knight (instructed by Government Legal Department) for the Defendant
Hearing dates: 13 July 2017
Approved Judgment
Introduction
The claimant, Jetmir Bucpapa, is currently serving a sentence of 30 years imprisonment for robbery, kidnapping and possession of a firearm. He seeks to challenge the decision of the Secretary of State for Justice ("the Secretary of State") dated 9 August 2016 ("the Decision") refusing his application to repatriate to Albania in order to serve the remainder of his sentence in his home country.
The claimant has permission from HHJ Stephen Davies dated 24 February 2017 to challenge the Decision on two grounds. First of all he says that the Decision was irrational (that is to say Wednesbury unreasonable) because of the focus of the Decision on the potential reduction in time he might have to serve in prison made it impossible for him to be repatriated. Secondly he says that the Decision is arbitrary, being in breach of the principle of consistency in circumstances where other (a total of 17) Albanian nationals who have committed serious offences have been repatriated despite the potential for a reduction in time they would serve in prison.
Permission was refused in relation to two other grounds namely an allegation of ultra vires and a claim based on Article 8 ECHR.
The Secretary of State has served two witness statements made by Graham Wilkinson, the Head of the Foreign National Offender Policy and Cross Border Transfer Section of the Prison and Probation Service dated respectively 18 April and 6 July 2017 with enclosures which includes a Submission to the relevant Minister, Mr Gyimah, the Parliamentary Under Secretary of State, prepared for the purposes of his making the Decision.
Legal background
Council of Europe's Convention on the Transfer of Prisoners
Both United Kingdom and Albania are signatories to the Council of Europe's Convention on the Transfer of Sentenced Prisoners ("the Convention"). The preamble to the Convention provides:-
" Considering that the aim of the Council of Europe is to achieve a greater unity between its members;
Desirous of further developing international cooperation in the field of criminal law;
Considering that such cooperation should further the ends of justice and the social rehabilitation of sentenced persons;
Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society; and
Considering that this aim can best be achieved by having them transferred to their own countries"
The Convention includes the following material articles: terms:-
"2 (1) The Parties undertake to afford each other the widest measure of cooperation in respect of the transfer of sentenced persons in accordance with the provision of this Convention"
"3 (1) A sentenced person may be transferred under this Convention only on the following conditions:
a. if that person is a national of the administering State;
b. if the judgment is final;
c. if, at the time of receipt of the request for transfer, the sentenced person still has at least 6 months of the sentence to serve or if the sentence is indeterminate;
d. if the transfer is consented to by the sentenced person or, where in view of his age or his physical or mental condition one of the two States considers it necessary, by the sentenced person's legal representative;
e. if the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and
f. if the sentencing and administering States agree to the transfer"
9 (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."
11 (1) In the case of conversion of sentence, the procedures provided for by the administering State apply. When converting the sentence, the competent authority:
a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;
b. may not convert a sanction involving 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."
The Explanatory Report accompanying the Convention states as follows:
"9. In facilitating the transfer of foreign prisoners, the convention takes account of modern trends in crime and penal policy. In Europe, improved means of transport and communication have led to a greater mobility of persons and, in consequence, to increased internationalisation of crime. As penal policy has come to lay greater emphasis upon the social rehabilitation of offenders, it may be of paramount importance that the sanction imposed on the offender is enforced in his home country rather than in the State where the offence was committed and the judgment rendered. This policy is also rooted in humanitarian considerations: difficulties in communication by reason of language barriers, alienation from local culture and customs, and the absence of contacts with relatives may have detrimental effects on the foreign prisoner. The repatriation of sentenced persons may therefore be in the best interests of the prisoners as well as of the governments concerned."
Under section 1 of the Repatriation of Prisoners Act 1984 ("the 1984 Act") the Secretary of State may issue a warrant providing for the transfers of a prisoner in or out of the United Kingdom. Section 1 provides:
" (1) Subject to the following provisions of this section, where-
a) the United Kingdom is a party to international arrangements providing for the transfer between the United Kingdom and a country or territory outside the British Islands of persons to whom subsection (7) below applies, and
b) the relevant Minister and the appropriate authority of that country or territory have each agreed to the transfer under those arrangements of a particular person (in this Act referred to as "the prisoner"), and
c) in a case in which the terms of those arrangements provide for the prisoner to be transferred only with his consent, the prisoner's consent has been given,
the relevant Minister shall issue a warrant providing for the transfer of the prisoner into or out of the United Kingdom
(2) the relevant Minister shall not issue a warrant under this section, and if he has issued one, shall revoke it, in any case where after the duty under subsection (1) above has arisen and before the transfer in question takes place circumstances arise, or are brought to the relevant Minster's attention, which in his opinion make it inappropriate that the transfer should take place"
It is common ground that a primary policy purpose of the 1984 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 rigor of the punishment inflicted": see R v Secretary 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
The application of the 1984 Act is dependent on there being a specific agreement between the sending State and the receiving State. That agreement is the Prisoner Transfer Agreement ("PTA") signed on 15 January 2013. Neither the 1984 Act nor the PTA provides for any legal right of a prisoner to be transferred; the decision is one for the contracting States alone.
The recital to the PTA states that its purpose is to " ensure that wherever possible foreign national prisoners should serve their sentences in their own countries"; and reaffirms that "sentenced persons shall be treated with respect for their Human Rights."
Article 2 of the PTA provides:
1. "The Parties shall afford each other the widest measure of cooperation in respect of the transfer of the sentenced persons in accordance to the provisions of this Agreement.
2. As between the Parties, this Agreement shall prevail over any multilateral Agreements governing the transfer of sentenced persons to which both Parties may be party.
3. Where both Parties agree and in accordance with the provisions of this Agreement, a sentenced person may be transferred from the territory of the transferring State to the territory of the receiving State with or without the sentenced person's consent in order for the sentenced person to continue serving the sentence imposed by the transferring State.
4. The transfer of...
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