R Peter Neville v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Edis,Mr Justice Saini |
| Judgment Date | 20 April 2021 |
| Neutral Citation | [2021] EWHC 957 (Admin) |
| Date | 20 April 2021 |
| Docket Number | Case No: CO/1932/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 957 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Edis
and
Mr Justice Saini
Case No: CO/1932/2020
Simon Farrell QC and Ellis Sareen ( Public Access) for the Claimant
Adam Payter (instructed by Government Legal Department) for the Defendant
Hearing date: 30 March 2021
Approved Judgment
Lord Justice Edis and
This joint judgment is in 6 main parts as follows:
| I. Overview: | paras.[1–7] |
| II. The Facts: | paras.[8–33] |
| III. Legal Framework: | paras.[34–43] |
| IV. Construction of s.273 of the CJA 2003: | paras.[44–65] |
| V. HRA 1998 Arguments: | paras.[66–95] |
| VI. Conclusion: | para.[96] |
I. Overview
Peter Neville (“the Claimant”) is a serving prisoner repatriated from Thailand on 24 January 2019, following his conviction and sentence in that country for drug offences on 30 November 2011. The Claimant originally received a sentence of imprisonment for life for these offences but, as a result of a collective royal pardon in Thailand issued in April 2015, his punishment was commuted to a determinate period of imprisonment. That period has been modified downwards from time to time as a result of further collective pardons issued by of the King of Thailand.
By this claim for judicial review, the Claimant challenges the decision of the Secretary of State for Justice (“the Defendant”) of 3 April 2020 refusing to treat him as a “transferred life prisoner” and accordingly declining to refer his case to the High Court, in accordance with s.273(1) of the Criminal Justice Act (“ CJA 2003”), for a minimum tariff to be fixed before he could (subject to the view of the Parole Board) be released on licence for life.
The Defendant has refused to treat the Claimant as a life prisoner within s.273 of the CJA 2003 because at time the Claimant was transferred to the UK by the Thai authorities to serve his remaining sentence in England and Wales, he had received the pardons which the Defendant says meant he was now to be treated as prisoner subject to a determinate sentence of imprisonment
The Claimant says that he is in the unfair position of being worse off in the UK as a determinate sentence prisoner than he would have been had he been transferred here from Thailand as a life sentence prisoner. He submits that this unfairness arises because he was made subject to a collective royal pardon which altered his life sentence to a determinate term before his transfer.
In summary, his legal argument is that on the facts of his case and applying Thai law he is, as a matter of construction of s.237(1), a “ transferred life prisoner” within that subsection, even though he accepts that as a matter of practical reality he is serving a determinate sentence in the UK.
As of the date of the hearing before us, the Claimant has spent approximately 12.5 years in custody and will not be entitled to release for a further 8 years. He submits that if his case was referred to the High Court under s.237(1) (and then on to the Parole Board) he will be released with immediate effect.
May J granted permission to pursue a single ground (“the Construction Ground”) on 20 October 2020, but refused the Claimant permission to advance additional grounds based on the Articles 5, 6 and 14 of the European Convention on Human Rights (“the ECHR”). The Claimant has withdrawn his renewed his application on those grounds but relies upon these Convention rights in support of his submissions on the Construction Ground.
II. The Facts
On 8 November 2008, following a police operation, the Claimant was arrested in Phuket Province, Thailand for offences of the supply and possession of illegal drugs. The circumstances of his arrest were that two persons, arrested with drugs in their possession, informed the police that they had bought them from the Claimant. At the request of the police, one of the informants contacted the Claimant and asked to buy drugs from him. Two police officers listened to the conversation and later confirmed it was the voice of the Claimant. The Claimant agreed to meet the informant upon which he was arrested by the police. Drugs were found in the car that he drove to the scene of his arrest and were also recovered from his house following a police search.
In total, the Claimant had in his possession for the purposes of sale six bags of methamphetamine with a total weight of 161.972 grams and three bags of cocaine and methylene-dioxyamphetamine with a total weight of 90.137 grams. He was also in possession of a small quantity of cannabis. The evidence against the Claimant included testimony from three police officers, not concerned in the operation leading to his arrest, that “before arresting the defendant, police officers found that the defendant had sold Methamphetamine and had been under suspicion having exhibited suspicious behaviour while associating with known members of the drug selling network”. The Claimant denied the drugs belonged to him and said he did not know to whom they belonged. He claimed that he had met the informant so that she could repay a loan.
On 30 November 2011, following a trial before the Phuket Province Court, the Claimant was convicted of one offence, the equivalent of which, in England and Wales, is possession with intent to supply controlled drugs of type Class A contrary to s.5(3) and Schedule 2 of the Misuse of Drugs 1971 and two offences of simple possession of Class A drugs contrary to s.5(1) of that Act.
He was sentenced by the Phuket Province Court to life imprisonment and a fine of 2,000,000 baht (“the Fine”—about £40,000.00). In Thailand, possession of drugs in excess of 20 grams for the purposes of distribution attracts a penalty of life imprisonment and a fine, or death: R(Willcox) v SSJ [2009] EWHC 1483 (Admin) at [5]. We will need to return to this case in more detail and will refer to it below as “Willcox”.
On 17 February 2014, the Thai Court of Appeal dismissed the Claimant's appeal against conviction and sentence.
On 24 June 2014, the Phuket Province Court issued a warrant of imprisonment, signed by a judge, to the Director of Bang Kwang Central Prison. The warrant stated that the Claimant was the subject of a sentence of life imprisonment and instructed the Director to detain the Claimant for that period.
On 1 April 2015, a Thai Collective Royal Pardon (“CRP”) was issued by the King. It had no impact upon the Claimant's period of imprisonment but was believed by the Claimant (wrongly, it turns out) to remove his liability to pay the Fine.
On 17 June 2016, the Claimant made an application for transfer to the UK. The application identified that, according to Thai law, the Claimant was ineligible for transfer until he had served eight years of his sentence in Thailand.
In August 2016, another CRP was issued by Royal Decree in Thailand. This CRP provided for a reduction in punishment for certain classes of offenders. Under the August 2016 CRP, eligible prisoners serving life sentences had these sentences commuted to a determinative term of 50 years, which were then further reduced according to a formula based on their record of behaviour in prison.
In September 2016, the Claimant was informed by the British Embassy that his transfer application was cancelled because he was ineligible, having failed to pay the Fine.
The August 2016 CRP did not automatically alter the Claimant's sentence. A court order was required. Accordingly, on 4 November 2016, the Phuket Province Court issued a second warrant of imprisonment, signed by a judge, to the Director of Klong Prem Central Prison. The warrant stated that pursuant to the August 2016 CRP, the Claimant's sentence was “reduce[d] 1/7 times according to article 10(2)… Therefore, according to the Correction Act, a prison director will decrease a punishment for Mr Peter Neville according to this warrant. After an end date of this punishment the prisoner will be released immediately… Imprisonment for: 42 years 10 months 9 days… Release date: 13 September 2051”.
In December 2016, a further CRP was issued by a Royal Decree of the new Thai King. In due course, the Phuket Province Court issued a fresh warrant of imprisonment, again signed by a judge, to the Director of Klong Prem Central Prison. The warrant stated that pursuant to the new CRP the Claimant's sentence was “reduce[d] 1/7 times according to article 10(3)… Therefore, according to the Correction Act, a prison director will decrease a punishment for Mr Peter Neville according to this warrant. After an end date of this punishment the prisoner will be released immediately… Imprisonment for: 36 years 8 months 25 days… Release date: 31st July, 2045”.
On 20 February 2018, a friend paid the Fine on behalf of the Claimant.
The Claimant was then able to initiate the transfer application process. We will address the detail of the mechanics of this process and the respective roles of the Thai and UK authorities in detail below. But for present purposes, we note that the information provided by the Government of Thailand to the UK during the process included the warrants of imprisonment (referred to above at [18] and [19]) and a document entitled “Prisoner Imprisonment Data”. The latter stated the “previous imprisonment” was a “life sentence”, the “current imprisonment” as “36 years 8 months and 25 days” and the “remaining imprisonment” as “27 years 4 months 4 days”.
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