Orobator v Governor of HM Prison Holloway
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson |
| Judgment Date | 20 January 2010 |
| Neutral Citation | [2010] EWHC 58 (Admin) |
| Docket Number | Case No: CO/9527/2009,CO/9527/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 January 2010 |
[2010] EWHC 58 (Admin)
Before: Lord Justice Dyson
Mr Justice Tugendhat
Case No: CO/9527/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Edward FITZGERALD Q.C. and John RWD JONES (instructed by Bindmans LLP) for the Claimant
James STRACHAN (instructed by Treasury Solicitor) for the 2 nd Defendant
The 1 st Defendant did not appear and was not represented
Hearing dates: 8, 9 th December 2009
Lord Justice Dyson: this is the judgment of the court to which both its members have contributed.
Introduction
The claimant, a British citizen, is serving a term of life imprisonment in the United Kingdom under the provisions of the Repatriation of Prisoners Act 1984 (“the RPA”) consequent upon a prison sentence imposed on her in the Lao People's Democratic Republic (“Laos”) for a drugs offence.
She was arrested at Wattay International Airport in Laos on 5 August 2008 and found to be in possession of 680 grams of heroin. She was charged with exporting drugs contrary to Article 146(4) of the Laos Penal Code and was held in custody for approximately 10 months before being convicted and sentenced to life imprisonment on 3 June 2009.
The claimant agreed to be transferred to the UK to serve the remainder of her sentence pursuant to the Treaty between the United Kingdom of Great Britain and Northern Ireland and the Lao People's Democratic Republic on the Transfer of Sentenced Persons (“the Prisoner Transfer Agreement” or “PTA”). The PTA did not come into force until 25 September 2009. But the UK and Laos signed a Memorandum of Understanding on 28 July 2009 that both states would immediately apply the full provisions of the PTA administratively. She was transferred from Laos to the UK on 7 August 2009 and has been detained in HMP Holloway ever since.
It is the claimant's case that she was convicted and sentenced in circumstances amounting to a flagrant denial of justice and a flagrant breach of Article 6 of the European Convention on Human Rights (“ECHR”) and that as a consequence her conviction was not by a “competent court” within the meaning of Article 5(1)(a) of the ECHR. In the result, it is said on her behalf that her continued detention in the UK is “arbitrary” for the purposes of Article 5 of the ECHR and therefore unlawful.
She seeks judicial review of the decision of the Secretary of State for Justice of 18 August 2009 not to release her from custody. She also seeks an order that a writ of habeas corpus ad subjiciendum be directed to the Governor of HMP Holloway.
The legal framework
The RPA
Section 1 of the RPA 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… the United Kingdom…
(7) This subsection applies to a person if he is for the time being required to be detained in a prison … (a) by virtue of an order made in the course of the exercise by a court or tribunal … in any country … outside the British Islands, of its criminal jurisdiction …”
Section 3 provides:
“(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;
(b) the taking of the prisoner to such a 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”.
Section 3 (2) of the RPA sets certain limitations on provisions to be contained in a warrant. Section 3 (3) provides that in determining for the purpose of section 3(1)(c) what provisions are appropriate for giving effect to the international arrangements mentioned in that paragraph, the Secretary of State 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.”
Section 3 (4) gives effect to a detention provision in a warrant for all purposes as if it were contained in an order made by a criminal court in the UK (subject to section 3 (6) and the Schedule to the RPA). Section 3 (6) provides that subsection (4) shall not confer any right of appeal on the prisoner against provisions contained in a warrant.
The powers of the RPA 1984 were considered by the House of Lords in R v Secretary of State for the Home Department ex p Read [1989] AC 1014. At page 1048D, Lord Bridge of Harwich said that the primary policy objective of the RPA 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”.
The RPA does not specify what is required of the foreign person or body, whether as to its constitution or its procedures, if it is to qualify for recognition as a court under the RPA. But following the coming into force of the Human Rights Act 1998 (“ HRA”), article 5 of the ECHR applies, in particular:
“… No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court;…”
The meaning of the words ‘a competent court’ in article 5 is informed by the requirements of article 6. Article 6 provides:
“1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3 Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
The effect of the HRA is that it is now open to a prisoner in the position of the claimant to challenge the lawfulness of her continued detention upon repatriation to the UK on the basis that the sentence imposed abroad was not by a competent court within the meaning of article 5(1)(a).
Both parties took as the starting point for their submissions (following the judgment of the ECtHR in Drozd and Janousek v France and Spain [1992] 14 EHRR 745 at para 110) that:
“The Contracting States are … obliged to refuse their co-operation if it emerges that the conviction is the result of a flagrant denial of justice [as those words are used in Soering v UK (1989) 11 EHRR 439 at para 113]”
The PTA
The recitals to the PTA set out its general aims. These include (1) co-operation in the...
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