LEGISLATION
| Published date | 01 March 1985 |
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00834.x |
| Date | 01 March 1985 |
LEGISLATION
REPATRIATION
OF
PRISONERS ACT
1984
THE
Repatriation of Prisoners Act, which received the Royal
Assent on July
26,1984,
enables persons sentenced to imprisonment’
in this country to be transferred to complete their sentences
abroad, and facilitates the transfer of persons from foreign
institutions into this country. It is the first time that the United
Kingdom has undertaken to enforce a foreign court’s criminal
judgments. The Act also marks a change in emphasis in the
Government’s penal policy; unlike other measures it has introduced,
the Government’s aim here is avowedly humanitarian and
rehabilitative.
The impetus for the Act derives from the Convention on the
Transfer of Sentenced Prisoners, drafted under the aegis of the
Council of Europe, which the United Kingdom signed in August
1983.*
The Convention has been signed by a total
of
16
states, but
has yet to be ratified. The Act’s provisions are wider than the
terms of the Convention, endowing the Secretary of State with
general powers to make arrangements for transfers under the
Convention, under bilateral agreements, or by ad hoc arrangements.
The Act is unlikely to affect large numbers of prisoners. It was
estimated in Parliament that about
300
prisoners might be
transferred out of this country, and that roughly
150
British citizens
in prisons in Council of Europe states, Canada and the United
States of America, and about
100
elsewhere, might be repatriated
to this country. There are more British citizens in foreign prisons
than this figure suggests, but many are unsentenced and therefore
outside the ambit of the Act, or serving short sentences (under six
months) which will not justify the machinery of the Act being
activated for them. The effect on the size of the prison population
will therefore be negligible; the Government is not contemplating
reducing overcrowding by getting rid of foreign inmates.
The humanitarian rationale of the measure rests on the assertion
that prisoners in foreign gaols suffer extra deprivation, isolation
and “pains of imprisonment
.”
Besides anecdotal evidence, evidence
from two surveys supports this view. The United Nations Social
Defence Research Institute, in a sample of
430
foreigners in prison
in
15
countries: found that one-quarter had no knowledge of the
language of the country in which they were imprisoned, and a
further quarter had only limited knowledge. Difficulties in
communication can also produce disciplinary problems when
Persons detained in a hospital
or
other institution under an order made by
a
court
or
tribunal exercising criminal jurisdiction are also included
by
virtue
of
s.1(7).
For
discussion
of
the Convention see Zellick,
[1983]
Crim.L.R.
673.
Survey
on
Foreign
Prisoners, UNSDRI
(ad.).
182
Mar.
19851
LEGISLATION
183
prisoners fail to understand and obey orders, and become marked
as unco-operative. A survey of Asian prisoners in English prisons4
also stressed difficulties due to cultural differences, such as dietary
requirements, which might not be adequately understood and
catered for by the authorities. Bodies such as the Howard League’
and the .National Council for the Welfare of Prisoners Abroad
(N.C.W.P.A.) have drawn attention to the disadvantages foreign
prisoners suffer by being unable to receive family visits, or to be
allowed the weekend leave granted to home prisoners.
It
has been
suggested by those advocating transfer that such deprivation, in
addition to the extra punishment that
it
entails, might also damage
the prisoner’s chances of re-integration and rehabilitation when he
eventually returns home, a view taken in the Convention. Whatever
the evidence for this argument, the undoubted humanity of the
measure enabled it to receive all-party, though not unqualified,
support in its progress through Parliament.
How
the Act
is
to
work
(a)
Consent.
The process of repatriation, following the recommen-
dation of an Inter-Departmental Working Party: is to be adminis-
trative rather than judicial. By section
1,
where an arrangement
exists between the United Kingdom and another country or
territory, which provides for transfer, and both agree to the
transfer of a consenting individual prisoner, then the Secretary of
State shall issue a warrant providing for that prisoner’s transfer
into or out of the United Kingdom. It is unclear who may initiate
the process. Presumably, if the prisoner is aware of an agreement
between the country where he is imprisoned and the United
Kingdom, he might ask to be transferred, but under the Convention
he has no right to do more than make an informal request.
The prisoner’s consent to transfer must be an informed one.
According to Article
7
of the Convention, and under section
l(4)
of
the Act, all reasonable steps must be taken to inform a prisoner
in writing in his own language
of
the substance of the arrangements
between the two countries and of the effect
of
the transfer on the
prisoner. During the Parliamentary debates, it was urged that
express reference should be made to the effects of remission and
parole on the length of sentence the prisoner could expect to serve
after transfer, as being perhaps the most crucial factor influencing a
prisoner’s decision whether to consent
,
but the Government argued
that the wording
of
section
1(4)(6)
implied this anyway.
Where
a
prisoner
is
unable to give consent due to his physical or
mental condition or to his youth, consent may be given on his
behalf “by a person appearing to the Secretary
of
State to be an
appropriate person”
(s.1(5)).
This provision will no doubt cover
‘
R.
Horabin,
Problems
of
Asians
in
Penal Institutions
(1978).
Prisoners in Foreign
Jails
(1979).
The Reparridon
of
Prisoners
(1980).
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