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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bucpapa v Secretrary of State for Justice  EWHC 1895 (Admin) (27 July 2017)
Cite as:  EWHC 1895 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Jetmir Bucpapa
|- and -
|Secretrary of State for Justice
Christopher Knight (instructed by Government Legal Department) for the Defendant
Hearing dates: 13 July 2017
Crown Copyright ©
HHJ McKenna :
Council of Europe's Convention on the Transfer of Prisoners
"Considering that the aim of the Council of Europe is to achieve a greater unity between its members;
Desirous of further developing international cooperation in the field of criminal law;
Considering that such cooperation should further the ends of justice and the social rehabilitation of sentenced persons;
Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society; and
Considering that this aim can best be achieved by having them transferred to their own countries"
"2 (1) The Parties undertake to afford each other the widest measure of cooperation in respect of the transfer of sentenced persons in accordance with the provision of this Convention"
"3 (1) A sentenced person may be transferred under this Convention only on the following conditions:
a. if that person is a national of the administering State;
b. if the judgment is final;
c. if, at the time of receipt of the request for transfer, the sentenced person still has at least 6 months of the sentence to serve or if the sentence is indeterminate;
d. if the transfer is consented to by the sentenced person or, where in view of his age or his physical or mental condition one of the two States considers it necessary, by the sentenced person's legal representative;
e. if the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and
f. if the sentencing and administering States agree to the transfer "
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."
11 (1) In the case of conversion of sentence, the procedures provided for by the administering State apply. When converting the sentence, the competent authority:
a. shall be bound by the findings as to the facts insofar 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."
"9. In facilitating the transfer of foreign prisoners, the convention takes account of modern trends in crime and penal policy. In Europe, improved means of transport and communication have led to a greater mobility of persons and, in consequence, to increased internationalisation of crime. As penal policy has come to lay greater emphasis upon the social rehabilitation of offenders, it may be of paramount importance that the sanction imposed on the offender is enforced in his home country rather than in the State where the offence was committed and the judgment rendered. This policy is also rooted in humanitarian considerations: difficulties in communication by reason of language barriers, alienation from local culture and customs, and the absence of contacts with relatives may have detrimental effects on the foreign prisoner. The repatriation of sentenced persons may therefore be in the best interests of the prisoners as well as of the governments concerned."
The Repatriation of Prisoners Act 1984
"(1) Subject to the following provisions of this section, where-
a) the United Kingdom is a party to international arrangements providing for the transfer between the United Kingdom and a country or territory outside the British Islands of persons to whom subsection (7) below applies, and
b) the relevant Minister and the appropriate authority of that country or territory have each agreed to the transfer under those arrangements of a particular person (in this Act referred to as "the prisoner"), and
c) in a case in which the terms of those arrangements provide for the prisoner to be transferred only with his consent, the prisoner's consent has been given, the relevant Minister shall issue a warrant providing for the transfer of the prisoner into or out of the United Kingdom
(2) the relevant Minister shall not issue a warrant under this section, and if he has issued one, shall revoke it, in any case where after the duty under subsection (1) above has arisen and before the transfer in question takes place circumstances arise, or are brought to the relevant Minster's attention, which in his opinion make it inappropriate that the transfer should take place "
UK – Albania Bilateral Prisoner Agreement
1. "The Parties shall afford each other the widest measure of cooperation in respect of the transfer of the sentenced persons in accordance to the provisions of this Agreement.
2. As between the Parties, this Agreement shall prevail over any multilateral Agreements governing the transfer of sentenced persons to which both Parties may be party.
3. Where both Parties agree and in accordance with the provisions of this Agreement, a sentenced person may be transferred from the territory of the transferring State to the territory of the receiving State with or without the sentenced person's consent in order for the sentenced person to continue serving the sentence imposed by the transferring State.
4. The transfer of sentenced persons may be requested by either the transferring State or the receiving State.
5. The Parties may enter into a Memorandum of Understanding governing the implementation of this Agreement."
"Conditions for Transfer:
Sentenced persons may be transferred under this Agreement only on the following conditions:
(a) the sentenced person is a national of the receiving State for the purposes of this Agreement;
(b) the sentenced person consents to the transfer or is subject to an order for expulsion, deportation or removal from the transferring State;
(c) the judgment is final and no other legal proceedings relating to the offence or any other offences committed by the sentenced person are pending in the transferring State;
(d) the acts or omissions for which the sentence has been imposed constitute a criminal offence according to the receiving State or would constitute a criminal offence if committed on its territory;
(e) the sentenced person has still at least 6 months of the sentence to serve at the time the request for transfer is received; in exceptional circumstances, the Parties may agree to a transfer even if the sentenced person has less than 6 months of the sentence to serve; and
(f) the transferring and receiving States both agree to the transfer."
"Continued enforcement of sentence
1. Where the sentence imposed by the transferring State is compatible the laws of the receiving State, the receiving State shall enforce the sentence as if the sentence has been imposed in the receiving State. The receiving state shall not convert the sentence to a sentence which may have been imposed in the receiving State for a similar offence.
2. If the sentence exceeds the maximum sentence prescribed in the receiving State for a similar offence, the receiving State may, with the agreement of the transferring State prior to transfer, reduce the sentence to the maximum sentence provided in the legislation of the receiving State for that criminal offence. The appropriate authorities of the receiving State shall be bound by the findings of fact, in so far as they appear from any opinion, conviction, judgment or sentence imposed in the transferring State. The sentence shall not aggravate, by its nature or duration, the sanction imposed in the transferring State."
"Foreign national prisoners make up approximately 13% of the prison population. Many of those prisoners have no right to settle in this country and others will have forfeited that right by their criminal behaviour. The Government is committed to ensuring that, where appropriate, they should be returned to serve their sentences in the countries where they will live on release. This will free up prison places and enable prisoners who are transferred to be more effectively integrated into their home communities. To this end it is Government policy to negotiate and conclude prisoner transfer agreements with a wide number of other countries or to encourage other countries to participate in the European Convention on the Transfer of Sentenced Persons (1983) or the Commonwealth Scheme for the transfer of convicted offenders within the Commonwealth (1990, as amended).
…In deciding whether or not a prisoner should be transferred without his or her consent, account will be taken of the prisoner's views and of their links with the United Kingdom and with Albania. Account will also be taken of prisoner conditions in the receiving State and any concerns as to the prisoner's safety in the event of a transfer. However, in the case of a prisoner returning to his own country where he has recently been resident, the government believes local prison conditions should be viewed in the context of the general living conditions of the country concerned. A prisoner has no formal right to appeal against the decision to transfer him to a prison of the country of his nationality but will be able to seek a judicial review of the decision in the normal way".
"it will be seen that neither the Convention nor the 1984 Act gives any guidance as to what the Secretary of State should take into account in determining whether or not to consent to the transfer of a prisoner."
The Albanian Criminal Code
"Release on parole
The convict may be released from serving a sentence earlier on parole only for specific reasons, if his behaviour and work demonstrates that, referring to the time served, the purposes of his education has been fulfilled, and he has served;
- no less than half of punishment time imposed for criminal contraventions;
- no less than two third of the punishment given for crimes punishable to imprisonment up to 5 years;
- no less that three fourths of the punishment for crimes punishable to imprisonment for five to twenty five years...
The time benefited based on an amnesty or pardon shall not be calculated into the served punishment.
It shall not be allowed to release on parole a recidivist for a crime committed with intent as well as a convict due to the commission of criminal offences provided for in Article 78/a, 79/a, 79/b, 79/c or the third paragraph of Article 100.
Release on parole shall be revoked by the court, when the convict sentenced for a intentionally committed criminal offence, commits another intentional criminal offence during the parole period, applying the provisions on joining the punishments."
"A convict serving life imprisonment shall not be allowed to be released on parole.
Only under extraordinary circumstances may the convict serving life imprisonment be released on parole, if:
He has served no less than twenty five years imprisonment and during the period serving sentence has shown excellent behaviour and it is deemed that the educational aim of the sentence has been achieved."
The decision under challenge
"Enforcement of sentence following transfer
8. Enforcement of a sentence following transfer is a matter for the receiving state. While the receiving state is normally required to continue to enforce the sentence in full, that state's domestic release arrangements replace those of the sentencing state. This can result in a prisoner being released from custody either earlier or later than would be the case in the sentencing state. In addition to applying its domestic release arrangements, a receiving state can adapt (reduce) a sentence where it exceeds the maximum available to its courts for the specific offence. If the sentencing state is not satisfied with the way the sentence will be administered following transfer it can withdraw its request and refuse transfer.
9. In Mr Bucpapa's case the Albanian authorities have indicated that they cannot enforce a 30 year sentence. They have said that they would instead adapt it to one of 15 years. Under Article 139 of the Albanian criminal code, robbery attracts a maximum sentence of 15 years and under Article 109, the maximum sentence for kidnapping is 20 years. Although the maximum sentence available to the Albanian courts in this case would be one of 20 years, the court considering this case has set the sentence at 15 years. If transferred, Mr Bucpapa could be considered for release at the three quarter point of the sentence. Release is not guaranteed at this point and will be determined by the Courts in Albania. Only if the prisoner has engaged with the prison regime, education or work in prison will release be considered. If released at the three-quarter point of the sentence Mr. Bucpapa will be released some 3 years and 9 months earlier than his conditional release date here (which would have been the half way point of his 30 year sentence, i.e. 15 years). Whilst a reduction in time to serve would not, on its own normally result a refusal to transfer a prisoner, it is a valid reason for rejection, especially in cases where such reduction is considered substantial.
10. Kent Police, who were responsible for the investigation of the robbery, have objected to Mr Bucpapa's transfer. They believe that Mr Bucpapa has links to organised crime in Albania which could undermine the Albanian authorities' ability to detain him. This cannot form a ground for refusing the transfer as the police have not offered any evidence to support this. Since the introduction of the Agreement with Albania 17 prisoners have been transferred there, including prisoners serving long determinate and indeterminate sentences. There is no evidence to date that the Albanian authorities have neen unable to detain or properly manage those who we have transferred.
11. It is the view of Mr Bucpapa that he is being treated differently to other prisoners who have been allowed to transfer and who have benefitted from reductions in time to serve. He has also claimed that his rights under Article 8 ECHR (right to family life) have been breached by the previous decision not to let him serve his sentence in Albania until his conditional release date and further relies on the fact that his father has a heart condition for which he has provided medical proof.
13. We are of the view that there remains a compelling reason to refuse Mr Bucpapa's transfer request. He has been convicted of a serious offence in which firearms were carried, persons were kidnapped and threatened, and where a substantial amount of the proceeds of the crime remain unaccounted for. This was a high profile robbery which attracted considerable national media coverage. Mr Bucpapa's transfer and early release in Albania could undermine public confidence in the transfer system. You might consider that this, when coupled with the potential reduction in time to serve, mitigate against approving this request.
14. It remains open to you to approve this request notwithstanding the previous decision to refuse it. Mr Bucpapa is an Albanian national and his family live there. Although Mr Bucpapa would be likely to benefit from a reduction in time to serve the reduction in this case is not disproportionate or out of line with that allowed in other cases. It is government policy that, wherever possible, foreign nationals should serve their sentences in their own country. Mr Bucpapa has applied for transfer but would also be in scope for compulsory transfer. As a foreign national offender Mr Bucpapa will be subject to a deportation order and will in any event be returned to Albania on release. Transferring him to a prison in Albania now will enable him to re-establish his links with his family and friends there, and be properly prepared for release into the community by the Albania authorities. While the deportation order remains in force he will not lawfully be able to return to the United Kingdom. You might consider that these factors tip the balance in the favour of the transfer."
"In your letter of 4 April 2016 you referred to other Albanian prisoners convicted of serious offences whose repatriation to Albania had been agreed, notwithstanding the fact that they would potentially be released early following their transfers. You suggested that to refuse your client's repatriation on the basis that he could be released early if transferred was discriminatory and degrading treatment for the purposes of Articles 14 and 3 of the European Convention on Human Rights. Finally, you submitted that your client's father is in poor health and that you client wished to return to Albania in order to re-establish family ties.
The Secretary of State has considered your client's representations together with the background facts of this case. He recognises that it is government policy that, where possible and appropriate, foreign nationals should serve their sentences in their own countries. He further recognises that your client wishes to re-establish relationships with his family in Albania and that other prisoners have been transferred to Albania despite a potential reduction in their time in prison.
Notwithstanding these factors the Secretary of State has decided to refuse your client's request for repatriation and has concluded that your client should remain in the UK to serve the remainder of his prison sentence.
Your client has been convicted of a number of extremely serious offences. He participated in a well-organised and large-scale robbery of an extremely large amount of money, the majority of which remains to be recovered. The crime involved the kidnapping of a number of persons, including a child, and the making of threats to kill.
Although release on parole in Albania is not automatic the Secretary of State remains concerned that your client could potentially be considered for release some 3 years and 9 months earlier than he could be if he were to remain in the United Kingdom. Early release of someone convicted of such offenses in these circumstances would risk undermining public confidence in the criminal justice system including the prison transfer process.
Decisions on prisoner transfers are discretionary and highly fact-specific. Although in some instances prisoners convicted of serious offences have been transfered despite a potential reduction in time to serve, the Secretary of State is not bound to reach the same conclusion in your client's case or any other case; all decisions on transfer are taken on their individual merits in light of the particular circumstances. The Secretary of State's decision must focus on the circumstances of your client's case and not those of some other case.
Your client's separation from his family does not represent a compelling reason to grant transfer. Further, any interference with your client's Article 8 rights under the European Convention on Human Rights(which is not admitted), in respect of separation from the remainder of your client's family in Albania would amount to a justified interference as a consequence of the crime he chose to commit in the UK and the sentence imposed in the UK. Your client has, of course, no right to choose where he should serve his sentence.
In light of these considerations the Secretary of State decided that, because of the unusual severity of you client's offences and the possibility of him being released from prison 3 years and 9 months earlier than if he were to remain in the UK, the transfer would damage public confidence in the transfer system and should be refused."
"6. Within the context of these arrangements it is Government policy that, where appropriate, prisoners should serve their sentences of imprisonment in their own countries. As there is no automatic right to transfer, each case is considered on its individual merits. The decision on whether or not a sentenced person should be transferred is a matter for the Secretary of State. In determining whether or not a sentenced person should be transferred, the Secretary of State will weigh in the balance the interests of the persons requesting transfer against other interests such as: the views of victims, the seriousness of the offence, the impact of transfer on the enforcement of sentence following the transfer and the consequences for public confidence in the criminal justice system. Other factors may also be taken into account where they arise on the particular facts of the individual case. There is no set formula which is always applied; the huge variety between cases means that there could not be.
7. The Secretary of State has a wide discretion in determining a transfer request and the fact that the Secretary of State previously approved transfer requests to a particular country cannot bind her to approving all future requests for transfers to that country. To do so would be to remove her discretionary power granted by Parliament and render consideration of any individual transfer request meaningless. Each is, and can only be, considered on its own merits.
8. As consideration for transfer is case specific it follows that different decisions may be reached in individual cases depending on the circumstances of those cases…
9. The impact of sentence enforcement arrangements is also an important factor. Once a sentenced person has been transferred the release arrangements applicable in the sentencing State cease to apply and are replaced by those applicable in the receiving State. As a consequence, the release of a sentenced person following transfer may be earlier or later than would have been the case in the sentencing State. The change in release arrangements, including reduction in likely time served, would not on its own necessarily result in refusal to transfer an individual, unless the change was so significant that the Secretary of State considered transfer to be inappropriate.
10. However a reduction in time to serve may not be appropriate when coupled with other factors. For example, in 2016, the Secretary of State refused the request for transfer to Italy where a prisoner was subject to an additional consecutive term of imprisonment in default of non-payment of a confiscation order and was likely to avoid serving that term or satisfying the financial order if transferred"
"50. I readily accept the proposition that the principle that like cases should be treated alike does not mean that a decision maker needs to trawl through other cases looking for the possibility that there might be a relevant decision to consider. Lawful decision making should not become either formulaic or difficult to achieve. I also accept that conscientious decision makers, applying their minds to the same set of facts, may sometimes come to different conclusions (a graphic example of which occurred in the case of Otshudi v Secretary of State for the Home Department  EWCA Civ 893 to which Miss Broadfoot referred me.)"