Punishment Part Hearing Under Section 10(2j) Of The Prisoners And Criminal Proceedings Scotland Act 1993 Relative To Julian Nicholas Gilbey
| Jurisdiction | Scotland |
| Judge | Lord Emslie |
| Court | High Court of Justiciary |
| Date | 16 July 2010 |
| Published date | 15 July 2010 |
| HIGH COURT OF JUSTICIARY [2010] HCJ 4 | |
| OPINION of THE HONOURABLE LORD EMSLIE in re Punishment Part Hearing under section 10(2J) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 relative to JULIAN NICHOLAS GILBEY ______________ |
For the Crown: Allan, QC, AD
For Mr Gilbey: Macara, QC, solicitor advocate
16 July 2010
Introduction
[1] On 19 October 2001 Julian Nicholas Gilbey, a British citizen, was (along with others) arrested at Don Mueang Airport, Thailand, as he was about to board a flight to Taiwan. In his possession was a black travelling bag containing several packages of high-purity heroin. The weight of the packaged drugs was in excess of 3.3 kg. After a lengthy trial Mr Gilbey and three co-accused were, on 19 September 2002, convicted of drug-trafficking offences. The initial sentence of the court for these offences was execution, but on various grounds that was commuted to life imprisonment backdated to 19 October 2001.
[2] In Mr Gilbey's case appeals failed in 2004 and 2006, and he continued to be held in Thai prisons until, in 2009, the possibility of his being repatriated to the UK arose. This proceeded under international arrangements, the primary purpose of which was to give prisoners such as Mr Gilbey "...the opportunity to serve their sentence within their own society". After the requisite consents were obtained from the Thai and UK governments, and from Mr Gilbey himself, the transfer ultimately took place pursuant to a repatriation warrant signed by the Scottish Ministers on 22 February 2010. Since his arrival in this country, Mr Gilbey has continued to be detained at HM Prison Barlinnie, Glasgow.
[3] The Scottish Ministers now ask this court, by virtue of section 10(2A) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"), to fix an appropriate punishment part referable to Mr Gilbey's commuted Thai life sentence, and I have heard an interesting debate on the principles to be applied in determining the application.
The repatriation regime
[4] An appropriate starting point here is in my view the statutory regime under which Mr Gilbey's repatriation was effected and without which he would not be in this country at all. By section 1(1), (3), (5) and (7), the Repatriation of Offenders Act 1984 ("the 1984 Act") makes provision for a relevant warrant to be issued where the UK is a party to international arrangements (for the transfer of prisoners) between the United Kingdom and "a country or territory outside the British Islands", where the subject is a British citizen detained in consequence of criminal proceedings, and where all necessary consents (including that of the prisoner) have been given. Section 3 regulates transfer into the UK in inter alia the following terms:
"3(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;
....; 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.
....
(3) In determining for the purposes of paragraph (c) of sub-section (1) above what provisions are appropriate for giving effect to the international arrangements mentioned in that paragraph, the relevant Minister 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.
.... "
[5] As the House of Lords confirmed in R v SSHD, ex parte Read 1989 1AC 1014, the 1984 Act was passed in implement of the Convention on the Transfer of Sentenced Persons 1983 (Cmnd. 9617). Under that Convention, signatories could opt to exclude either of two quite different alternative regimes which were described by Lord Bridge of Harwich (at pp 1048-9) in these terms:
"Two radically different procedures are provided under the Convention affecting the nature of the sentence to be served by a prisoner after his transfer to the administering State. These are described in Articles 9, 10 and 11 which, so far as relevant, provide as follows:
' Article 9
Effect of Transfer for administering State
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.
2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.
3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions...'
Article 10
Continued Enforcement
1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.
2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.
Article 11
Conversion of sentence
1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority: (a) shall be bound by the findings as to the facts in so far as they appear explicitly or implicitly from the judgment imposed in the sentencing State; (b) may not convert a sanction involving a 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...."
Article 3.3 provides:
"Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, indicate that it intends to exclude the application of one of the procedures provided in Article 9.1(a) and (b) in its relations with other parties".
The United Kingdom has indicated, in accordance with Article 3.3, that it intends to exclude the application of the procedure provided in Article 9.1(b). The nature and duration of any sentence, therefore, to be served in the United Kingdom as the administering State by a prisoner transferred here under the Convention is governed by the procedure for continued enforcement under Article 10 to the exclusion of the procedure for conversion of sentence under Article 11."
[6] As his Lordship went on to explain at pp 1052-3, the distinction between the two regimes was clearly illustrated by an explanatory report forming part of the travaux préparatoires to the Convention. Paragraphs 49 and 50 of that report provided as follows:
"49 Where the administering State opts for the 'continued enforcement' procedure, it is
bound by the legal nature as well as the duration of the sentence as determined by the sentencing State (paragraph 1): the first condition (legal nature) refers to the kind of penalty imposed where the law of the sentencing State provides for a diversity of penalties involving deprivation of liberty, such as penal servitude, imprisonment or detention. The second condition ("duration") means that the sentence to be served in the administering State, subject to any later decision of that State on, for example, conditional release or remission, corresponds to the amount of the original sentence, taking into account the time served and any remission earned in the sentencing State up to the date of transfer.
50 If the two States concerned have different penal systems with regard to the division of penalties or the minimum and maximum length of sentence, it might be necessary for the administering State to adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. Paragraph 2 allows that adaptation within certain limits: the adapted punishment or measure must, as far as possible, correspond with that imposed by the sentence to be enforced; it must not aggravate, by its nature or duration, the sanction imposed in the sentencing State; and it...
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