Willcox (R on the application) v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley,Mr Justice Davis |
| Judgment Date | 01 July 2009 |
| Neutral Citation | [2009] EWHC 1483 (Admin) |
| Docket Number | Case No: CO/1197/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 July 2009 |
[2009] EWHC 1483 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION DIVISIONAL COURT
Before : Mr Justice Ouseley
Mr Justice Davis
Case No: CO/1197/2008
Mr E Fitzgerald QC and Mr J Jones (instructed by Moss Solicitors) for the Claimant
Miss C Ivimy (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 23 rd & 24 th April 2009
Mr Justice Ouseley:
The issue in this case is whether a prisoner, who has been transferred at his own request from another country under a Prisoner Transfer Agreement, has to serve the full sentence which the foreign court imposed subject only to English law on release dates, or whether his continued detention, on the facts of this case concerning his trial and the length of his sentence, would breach the ECHR, and entitle him either to immediate release or to an earlier release than he would otherwise enjoy.
Mr Willcox, the claimant, is a 45 year old British citizen, who was living in Thailand in April 2003 when he was arrested and detained there on drugs charges. He pleaded guilty in November 2004 to an offence of possessing for distribution 24 grams of pure heroin and 1.4 grams of pure MDMA, in the form of 14 ecstasy pills. He also pleaded guilty to the possession of small quantities of amphetamines and marijuana, which is immaterial to the issues which arise. Mr Willcox was sentenced to 33 years and 6 months in prison and a fine, almost all of which was for the offence of possession for distribution. A Royal amnesty produced a two week reduction in sentence and nullification of the fine. In June 2007, he sought transfer to England to serve the remainder of his sentence under the provisions of the 1990 bilateral agreement between Thailand and the UK for the transfer of prisoners. The two Governments agreed to his transfer and on 6 November 2007 he was transferred to England where he is now in prison. In June 2008, a Thai Royal Decree reduced his sentence to 29 years and 3 months. This led to a new warrant for his detention being issued by the Ministry of Justice under the Repatriation of Prisoners Act 1984. This means that his release date, at the half way point in his sentence, will be 5 December 2017. This takes into account the period served and any remission earned in Thailand. He will also benefit from any further Royal amnesties, whether general or personal. He has yet to hear the result of his application for a Royal pardon from the Thai King. This warrant of June 2008 is the decision under challenge.
Mr Fitzgerald QC, for the claimant, submits that, although on the face of it the procedures under the bilateral agreement with Thailand the Repatriation of Prisoners Act 1984 have been complied with, the continued enforcement of the sentence in the UK breaches Articles 5 and 3 of the ECHR. He pursued no point on Article 8. The breaches arise first because it is unlawful to enforce detention which is the result of a flagrant denial of justice. Thai law contains an irrebuttable presumption that, at the levels of pure heroin and ecstasy which the claimant admitted possessing, the possession was for the purposes of distribution. Mr Willcox could not put forward as a defence his contention that he only had the drugs for personal consumption. This meant that he was convicted for an offence of possession for distribution by way of an irrebuttable presumption of guilt on the crucial issue of the purpose for which he possessed the drugs. His plea of guilty was the inevitable consequence of the structure of the Thai criminal legislation. His contention as to personal use was not taken into account by way of mitigation of the sentence either. Article 5 was also breached because the sentence was arbitrary. Article 3 was breached because the length of the sentence was grossly disproportionate to the offence of simple possession which he admitted, and was still grossly disproportionate even if seen as an offence of possession with intent to supply the small amount of heroin and ecstasy involved, especially after so unfair a trial.
The Thai legislation and sentencing process
Section 15 of the Narcotics Act 1979 contains a general prohibition on producing, importing, exporting, disposing of or possessing Category 1 narcotics without a government permit. Heroin and ecstasy are category 1 narcotics. Paragraph 3 provides that “the production, import, export or possession of narcotics of category 1 in the following quantities shall be regarded as production, import, export or possession for the purpose of disposal.” The relevant quantity for the operation of this presumption for heroin or ecstasy is 3 grams pure. It is agreed that the presumption is irrebuttable.
The penalties for Category 1 narcotics offences are set out in sections 65–67. Section 65 deals with production, import and export; the death penalty applies if this is done for the purposes of disposal. There are lesser penalties for production by selling. Section 66 deals with disposal and possession for disposal of Category 1 narcotics. Where the pure quantity is below 3 grams, a term of imprisonment is to be imposed within the range 4 to 15 years or a fine within a set range or both. Between 3 and 20 grams, the term of imprisonment must be 4 years to life, and a fine within a set and substantially higher range. In excess of 20 grams, the sentence is life imprisonment and a fine within a similar range, or death. Section 67 deals with simple possession of 3 grams or below of Category 1 narcotics: the required term of imprisonment is between 1 to 10 years, or a fine within a given range or both.
In 2001, the Thai Constitutional Court had considered the compatibility of this irrebuttable presumption with the constitutional provision that a person charged with an offence was presumed innocent and had to be proved guilty. The presumption bit at 20 grams pure rather than at 3, at that time. The Court concluded (by 12–2) that the irrebuttable presumption and the constitutional provision were compatible. The purpose of the Act “is to enable efficient suppression and control of narcotics and to show accordance with the international narcotics convention to which Thailand is a member. This is because nowadays narcotics are an international concern and pose serious risks against human health and life. Therefore, punishments must be harsher than usual and the punitive measures must be absolute.” The aim of the legislation was to punish the possessors of more than 20 grams pure “as if their acts are for” the purpose of distribution. Category 1 narcotics posed a great danger to society; their production and possession was not allowed; the more that was produced and possessed, the greater the danger. “However, the determination by the law of the quantity of the 1st category narcotics only serves as a benchmark for the offence which will lead to punishments.” The Court, by way of explanation of that point, then set out the penalties showing the steps by which they increased with the amounts involved. This meant that it had to be proved against someone charged that he had really committed the offence, and thus accorded with the presumption of innocence.
A summary of Constitutional Court rulings published in the Government Gazette expressed the purpose of the presumption as being to provide “only a criterion for a comparison of the scale of penalties which would be imposed on the offender. In other words, regardless of whether the narcotics were held in possession for use…different penalties would be imposed varying on the amount in possession as provided by law. This meant that a person receiving a penalty under such law should have passed the proof or investigation of the plaintiff as being an actual offender.”
I read that judgment as saying that possession of the drug had to be proved, together with the specific quantities involved for the various steps in punishment. That satisfied the constitutional presumption of innocence. The impact of the irrebuttable presumption was to increase the penalty for possession of particular quantities, which was a legitimate approach to dealing with the scourge of drugs in Thailand.
The operation of the presumption can be seen in the trial of the claimant. He was acquitted of a very serious charge of possessing for distribution about 168 kgs of pure heroin because there was insufficient proof of actual possession; his co-defendant was convicted and sentenced to death. He pleaded guilty to the single offence of possession with intent to distribute the much smaller quantities of Category 1 narcotics which led to the sentence at issue because he was advised, correctly, that his contention that he was a drug addict who had them for his personal use had no legal relevance as a defence. He pleaded guilty to the simple possession of the other drugs. The Court did consider the evidence in relation to his actual possession of the drugs, although it was admitted that he had the drugs at his house where the police found them, and as to their pure quantity, although that too was admitted. At all stages of the hearing, and before and after trial, it has been Mr Willcox's consistent contention that the drugs were only for personal use. The Thai Court made no findings about that in relation to conviction because, under Thai law it was irrelevant.
The sentencing process did not take it into account either, whether after a fact finding process or as part of an accepted basis of plea. The Court would have sentenced him to life imprisonment, as mandated by the penalty provisions, but gave a discount for the guilty plea by equating the life sentence to one of 50 years and reducing it by one third to 33 years and 4 months. He...
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