R Steven Bristow v The Secretary of State for Justice (1st Defendant) The National Offender Management Service (2nd Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Mackay |
| Judgment Date | 16 October 2013 |
| Neutral Citation | [2013] EWHC 3094 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 October 2013 |
| Docket Number | Case No: CO/9723/2011 |
[2013] EWHC 3094 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Mr Justice Mackay
Case No: CO/9723/2011
Mr Hugh Southey QC (instructed by Stevens Solicitors) for the Claimant
Mr J Strachan QC (instructed by The Treasury Solicitor) for the Defendants
On 6 May 2004 the Claimant was sentenced by a Thai court to 26 years and six months imprisonment for offences equivalent to possession of illegal drugs with intent to supply. On 12 January 2011 he consented to his transfer to a British prison pursuant to the Repatriation of Prisoners Act 1984. By virtue of the warrant made pursuant to that Act and the domestic legislation relevant to the enforcement of foreign sentences in the United Kingdom he is entitled to be released after he has served half of the balance of the sentence to be served after the date of his return. He complains that, contrary to Art. 14, read with Art. 8 of the European Convention of Human Rights, he has been discriminated against when compared to other prisoners, in particular, those convicted abroad of a sexual or violent offence. Such prisoners are eligible for parole, and thus might be released after half of the total sentence ordered by the foreign court.
The effect of which the claimant complains is the result of changes to domestic sentencing legislation. But it is important to keep in mind that the claimant committed a crime in Thailand, and was sentenced under that foreign regime. The Repatriation of Prisoners Act 1984 and the relevant treaty arrangements, (the Prisoner Transfer Agreement between the UK and Thailand on the Transfer of Offenders and on Co-operation in the Enforcement of Penal Sentences 1990) were designed for the benefit of those who wish to serve part of their sentences at home, whilst upholding the foreign sentence, whether or not it would have been of a similar length if passed in the United Kingdom, and whether or not it corresponds to any offence here. A warrant issued under section 1 of the Repatriation of Prisoners Act 1984 gives authority for detention in the United Kingdom, as if it was a sentence passed by a United Kingdom court, for the balance of the sentence which remains to be served after transfer. The treaty arrangements provide that, once repatriated, the prisoner is subject to the United Kingdom statutory scheme for enforcement of the balance of the sentence which remains to be served, in particular subject to the provisions relating to early release.
As the domestic early release provisions have changed, so has their application to repatriated prisoners through amendments to the Schedule to the Repatriation of Prisoners Act 1984. Under the Criminal Justice Act 1991, long term prisoners in the United Kingdom were entitled to be considered for parole after one half of their sentence (section 35(1)) and to automatic release after serving two thirds (section 33(2) and (5)). These early release provisions were applied to repatriated prisoners through amendments to the Schedule to the Repatriation of Prisoners Act 1984 made by the Criminal Justice Act 1991. The way in which the 1991 early release provisions were applied depended on whether the release was discretionary, through the Parole Board, or automatic. Parole eligibility was calculated by reference to the whole of the period the prisoner had spent in custody, whether in a foreign country or in the United Kingdom. Automatic release was calculated by reference to the remainder of sentence to be served as at the date of transfer (see the definition of "the enactments relating to release on licence" in paragraph 1(1A) and paragraph 2(2) to the Schedule to the Repatriation of Prisoners Act 1984).
On 4 April 2005 the Criminal Justice Act 2003 discontinued parole eligibility in relation to determinate sentences, other than those for sexual or violent offences, and introduced automatic release halfway through the sentence. But these new domestic early release provisions did not apply to prisoners who had committed offences before 4 April 2005, who remained, like sexual or violent offenders, subject to the earlier Criminal Justice Act 1991 regime of discretionary release after one half and automatic release after two thirds of the sentence. These changes were applied to repatriated prisoners through amendments to the Schedule of the Repatriation of Prisoners Act 1984 made by the Criminal Justice Act 2003. Accordingly, for prisoners sentenced abroad for offences committed before 4 April 2005, no changes were made to their early release arrangements.
On 9 June 2008 the Criminal Justice and Immigration Act 2008 sought to apply the same early release provisions to most prisoners serving determinate sentences, whether they had committed offences before or after the introduction of the Criminal Justice Act 2003, on 4 April 2005. Accordingly, all such prisoners were entitled to automatic release halfway through their sentence. There remained certain exceptions to this harmonisation of the early release provisions: prisoners who had committed sexual or violent offences (specified under Schedule 15 to the Criminal Justice Act 2003) remained subject to the old Criminal Justice Act 1991 provisions. Those prisoners continued to be eligible for parole half way through their sentence, and entitled to automatic release after two thirds of their sentence.
These changes were applied to repatriated prisoners. Unless they had committed violent or sexual offences, they were entitled to automatic release after half of the balance remaining to be served after the date of transfer. But this provision was qualified in the case of prisoners who had committed offences before 4 April 2005 (the date when, for the most part, eligibility for parole was removed by the Criminal Justice Act 2003) and who had consented to transfer before 9 June 2008 (the date of the introduction of the harmonised regime under the Criminal Justice and Immigration Act 2008). Such prisoners had...
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