Prisoner Transfer Within the Irish-UK Common Travel Area (CTA) After Brexit: Human Rights Between Politics and Penal Reform

DOI10.1177/0022018320977527
Publication Date01 April 2021
AuthorTim J Wilson
SubjectArticles
CLJ977527 121..143 Article
The Journal of Criminal Law
2021, Vol. 85(2) 121–143
Prisoner Transfer Within the
ª The Author(s) 2020
Irish-UK Common Travel
Article reuse guidelines:
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Area (CTA) After Brexit:
DOI: 10.1177/0022018320977527
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Human Rights Between
Politics and Penal Reform

Tim J Wilson
Northumbria University Law School, UK
Abstract
The UK Government proposed in February 2020 that sentenced prisoner transfers with EU
member states should continue after Brexit, but using a more ‘effective’ process than the
existing CoE convention. The article analyses, with a particular focus on the Irish-UK CTA, the
significance of continued UK human rights compliance for the achievement of this objective and
the interrelationship of this issue with extradition/surrender (including the surrender of
fugitive prisoners). It is concluded that Brexit has most probably raised the level of formal and
institutional human rights compliance (including legal aid/assistance and the direct enforcement
of prisoners’ rights in domestic courts) required from the UK for criminal justice cooperation
with EU member states. Entering into such undertakings would not assist criminal impunity or
the evasion of lawfully imposed penalties. Such undertakings, however, cannot help to resolve
many problems inherent in prisoner transfer within the EU. The creation of a truly effective and
rehabilitative transfer system would require (a) constructive UK Government participation in
inter-governmental (including the UK devolved governments)/EU arrangements capable of
incrementally resolving or effectively mitigating criminal justice cooperation problems and (b)
acceptance at Westminster that this aspect of post-Brexit readjustment is likely to be inter-
mittent and of long-duration.
Keywords
Prisoner transfer, prisoners’ rights, ECHR, the Irish-UK Common Travel Area (CTA),
intermittent post-Brexit readjustment
Corresponding author:
Tim J Wilson, Professor of Criminal Justice Policy, Centre for Evidence and Criminal Justice Studies, Northumbria University Law
School, Newcastle upon Tyne, UK.
E-mail: tim.wilson@northumbria.ac.uk

122
The Journal of Criminal Law 85(2)
Introduction
The author of this article welcomes a UK Government policy objective and its public justification:
continued access to prisoner transfer with EU member states to assist, in the relevant cases, with prisoner
rehabilitation and resettlement. He has commented earlier on the importance of retaining transfer for
foreign women prisoners, especially any with underlying physical and mental health problems.1 This is
qualified by concerns arising from research indicating that prisoner transfer in the EU has ‘a disruptive
effect on the retribution, deterrence and rehabilitation functions of punishment’.2 The UK Government’s
proposal to build and improve on the existing CoE transfer convention could provide policy develop-
ment opportunities to remove or mitigate some of the dysfunctionality within the current EU
arrangements.
This item on the UK’s future criminal justice cooperation agenda can also be seen as a precautionary
move. Maintaining effective cross-border criminal justice cooperation, including extradition and sen-
tenced prisoner transfer, is critical politically should Brexit damage Northern Ireland’s fragile peace.3
Yet such a seemingly pragmatic and constructive objective presents right-wing UK governments with an
immediate dilemma. The AFSJ (Area of Freedom Security and Justice) model of criminal justice
cooperation ‘rests on a bundle of rights and obligations from which it is not easy or in some cases
possible to extricate certain instruments, especially from the outside’.4 This sets clear legal parameters
for future UK extradition and prisoner transfer cooperation with all EU member states, including Ireland.
As will be seen, even the use of CoE Convention in its unimproved form cannot side-step this EU human
rights baseline.
Past exaggeration (or misrepresentation) of the impact of human rights5 means that the bundling
of rights and safeguards into international cooperation arrangements presents a major presenta-
tional problem for the present or any successor UK Conservative Party government. Potential
concerns within its support base could be lowered, however, by publicly recognising the likely
modest impact of any formal and institutional human rights enforcement obligations required as a
direct consequence of Brexit. Some human rights advocates also contribute to such misconcep-
tions. Imagining ‘universal human rights trumping the world of politics, . . . supervised by powerful
courts and individual judges `a la Dworkin’s Hercules’,6 does not encourage more balanced
deliberations.
In analysing the role and significance of human rights in prisoner transfer, this article reflects on the
fragility and weakness of human rights in the daily work of the courts and prison administrations. This is
often disguised by how, when politicians (not only on the right7) dislike a legal outcome, they may resort
to claims about judges ‘lack of democratic legitimacy and public accountability’ instead of acknowl-
edging the real origins of the problem.8 More modest expectations of human rights law are, for example
1. TJ Wilson, ‘Not Quite Anyone’s Guess: Brexit, Forensic Science and Legal Medicine’ (2019) 61 J Forensic Leg Med 74.
2. T Marguery, ‘Towards the End of Mutual Trust? Prison Conditions in the Context of the European Arrest Warrant and the
Transfer of Prisoners Framework Decisions’ (2018) 25 Maastrich J Eur & Comp L 705.
3. For the potential impact of Brexit on crime and inter-communal relations in Northern Ireland, see G Davies, ‘Facilitating Cross-
border Criminal Justice Cooperation Between the UK and Ireland After Brexit: “Keeping the Lights On” to Ensure the Safety of
the Common Travel Area’, in this issue.
4. P Hustinx and others, Criminal Justice and Police Cooperation Between the EU and the UK After Brexit (Centre for European
Policy Studies (CEPS), Brussels 2018) 12.
5. Eg, O Wright, ‘Clarke’s Attack on “childlike” Comments Fuels Rift with May’ and A McSmith, ‘Moggygate Has Highlighted a
Loss of Honour in Politics’ The Independent (7 October 2011) 2.
6. P Agha, ‘Introduction’ in P Agha (ed), Human Rights Between law and Politics (Hart, Oxford 2017) 5.
7. Eg, T Blair, A Journey (Hutchinson, London 2010) 205: liberal minded judges, the ECHR ‘with its absolutist attitude to the
prospect of returning someone to an unsafe community . . . ’ and the UN Refugee Convention made it ‘the Devil’s own job to
return [asylum seekers]’.
8. D Feldman, ‘Democracy, Law and Human Rights: Politics as Challenge and Opportunity’ in M Hunt, HJ Hooper and P Yowell
(eds), Parliaments and Human Rights (Hart, Oxford 2017) 96–8.

Wilson
123
and in a way that is relevant to this article, consistent with assessments of the limited impact of human
rights on Irish penal policies. Conclusions are generally pessimistic.9 Though the comparatively recent
emergence in Ireland of prison litigation, despite long-standing and objectively assessable problems of
overcrowding and lack of in cell sanitation, may be significant in this respect.10 Elsewhere in common
law jurisdictions, a similar recognition of the limitations of judicial intervention can be seen in American
studies. These focus instead on the damaging misconceptions in political discourse about penal issues
and the need for the political reform of both penal policies and prosecution decision making.11
The approach to human rights in this article, therefore, does not only look at the relevant law. It is also
concerned with the politics of or discourse about human rights together with the organisational structures
for building (necessarily incrementally) and improving on existing transfer instruments. It begins by
examining the future EU-wide context for prisoner transfer with which Irish-UK arrangements—irre-
spective of whether the Article 50 process ends with a treaty—must be compliant. The second section
looks at prisoner transfers within the Common Travel Area (CTA) in terms of its origins, current state
and future options. The third section analyses the general approach of the courts—in terms of self-
imposed high bars to impeding extradition/transfer and the margin of appreciation (ECtHR)/discretion
(CJEU)—that restrict intervention. The fourth section examines human rights case law arising from
prison conditions and prisoner treatment. That section is not a detailed commentary on the issues that
may arise in an individual case or legislative/treaty review. Instead it suggests how understanding the
principles and trends discernible in the relevant case law might (a) counter political misrepresentations
about the interrelationship of human rights/’judicial activism’, criminal justice cooperation and Brexit,
especially the potentially limited impact of human rights challenges, and (b) assist with the identification
of the human rights issues that can only be addressed by policy development work on reformed transfer
arrangements.
There is inevitably some overlap with Davies and Arnell’s article in this issue. They examine the
history of extradition within the CTA and identify the policy options through which this could
continue after Brexit.12 This article, irrespective of the structure of the extradition process, seeks to
encourage political, professional and academic deliberations about prison conditions and prisoner
treatment issues arising from international in-custody...

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