R v Secretary of State for the Home Department, ex parte Read
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Griffiths,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 03 November 1988 |
| Judgment citation (vLex) | [1988] UKHL J1103-2 |
| Court | House of Lords |
[1988] UKHL J1103-2
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Griffiths
Lord Oliver of Aylmerton
Lord Goff of Chieveley
House of Lords
My Lords,
The Secretary of State appeals by leave of the Divisional Court (Parker L.J. and Kennedy J.) from the order of that court made on 30 October 1987 on the application of the respondent in judicial review proceedings declaring, in effect, that the terms of a warrant issued by the Secretary of State pursuant to the Repatriation of Prisoners Act 1984, authorising the transfer of the respondent from a Spanish prison to Her Majesty's Prison Wandsworth and his subsequent detention there, were vitiated by an error of law in that the Secretary of State misdirected himself as to the term of imprisonment required to be served in the United Kingdom following the transfer.
On 23 October 1985 the respondent was convicted before a Spanish court of competent criminal jurisdiction of an offence of introducing forged currency into Spain. He and two accomplices had flown to Alicante with counterfeit English bank notes with a face value of £14,000. They were caught red-handed by the Spanish police when seeking to exchange some of the notes for Spanish money. The court imposed the minimum sentence for the offence required by the Spanish penal code, which is imprisonment for 12 years and one day, but recommended to the Spanish Government the grant of a "partial amnesty" to reduce the length of the sentence to six years and one day. No action was taken on this recommendation until after the respondent had been transferred to England on 5 February 1987 pursuant to the warrant of the Secretary of State under the Act of 1984. Eventually, on 6 November 1987, the competent Spanish ministerial authority reduced the Spanish sentence to one of 10 years imprisonment. But this was after the order of the Divisional Court now appealed from.
The long title of the Act of 1984 reads:
"An Act to make provision for facilitating the transfer between the United Kingdom and places outside the British Islands of persons for the time being detained in prisons, hospitals or other institutions by virtue of orders made in the course of the exercise by courts and tribunals of their criminal jurisdiction."
Pursuant to the Act, British citizens convicted and sentenced to be detained in foreign countries may be transferred to the United Kingdom and foreigners convicted and sentenced here may be transferred to their own countries in each case to serve the balance of their sentences in their home countries in accordance with international arrangements to which the United Kingdom is a party. The appeal is concerned solely with the provisions affecting the return to this country of prisoners subject to sentences passed abroad. It is fundamental that in every case before transfer can be effected the sentencing state must have agreed to the transfer and the prisoner himself must have consented to it. Elaborate provision is made to ensure that the prisoner, before giving his consent, shall have been fully informed as to the effect which the transfer will have in terms of the sentence which he will be required to serve in the United Kingdom on his return: section 1(1), (4) and (5). Section 3(1)(c) provides that the effect of a warrant for the transfer of a prisoner to the United Kingdom issued by the Secretary of State under section 1 shall be to authorise:
"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 Secretary of State to be appropriate for giving effect to the international arrangements in accordance with which the prisoner is transferred."
The Act is framed in terms which would enable it to be operated in accordance with any international arrangements which the United Kingdom Government may make with other countries, either by adherence to some general international convention on the subject, or by ad hoc agreements with particular foreign governments. Some governments with draconian sentencing policies for the suppression of crime or of particular classes of crime in their countries might be reluctant to agree to the transfer of prisoners sentenced by their courts save on terms which would ensure that the length of their sentences remained unaltered, and the Act appears to contemplate that the Secretary of State may, if necessary to secure the return of a prisoner pursuant to ad hoc international arrangements, authorise his imprisonment on return for a term in excess of the maximum to which he would have been subject if he had committed a corresponding offence in this country: section 3(3)(a). Similarly there is nothing in the terms of the statute to prevent the Secretary of State from authorising the return to this country of a prisoner to continue to serve a sentence for an offence, e.g. consumption of alcohol contrary to Islamic law, which would have been no offence at all in this country.
The international arrangements under which the present respondent's transfer from Spain to the United Kingdom was effected are contained in the Convention on the Transfer of Sentenced Persons 1983 (Cmnd 9617) ("The Convention") to which the United Kingdom is a signatory, and it is on the provisions of the Convention that the outcome of this appeal turns. But it may be important to bear in mind, in considering the effect of those provisions, that the primary policy objective of the United Kingdom statute, which is equally reflected in the preamble to the Convention, 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.
In Article 1 of the Convention "sentencing state" is defined as meaning "the state in which the sentence was imposed on the person who may be, or has been, transferred" and "administering State" is defined as meaning "the state to which the sentenced person may be, or has been, transferred in order to serve his sentence."
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
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
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
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 as they appear explicitly or implicitly from the judgment imposed in the sentencing state; b. may not convert a sanction involving 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...
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