Briefing Making the Repatriation of Prisoners Fairer June 2011
About Fair Trials International Fair Trials International ( FTI ) is a UK-based NGO that works for fair trials according to internationally recognised standards of justice and defends the rights of those facing charges in a country other than their own. Our vision is a world where every person's right to a fair trial is respected, whatever their nationality, wherever they are accused. FTI provides individual legal assistance through its expert casework practice. It also addresses the root causes of injustice through broader research and campaigning and builds local legal capacity through targeted training, mentoring and network activities. www.fairtrials.net Acknowledgement Although the views expressed in this document are our own, Fair Trials International wishes to thank Freshfields Bruckhaus Derringer LLP for its hard work and support in compiling comparative research for this Briefing. Thanks to the firm s EU-wide network of offices, we have been able to draw on a wealth of legal expertise to present data on how other states deal with the early release of transferred prisoners. For further information, contact: Daniel Mansell Policy Officer Rebecca Shaeffer Caseworker Fair Trials International Fair Trials International 3/7 Temple Chambers 3/7 Temple Chambers Temple Avenue Temple Avenue London EC4Y 0HP London EC4Y 0HP 0207 822 2370 0207 822 2370 Daniel.Mansell@fairtrials.net Rebecca.Shaeffer@fairtrials.net Registered charity no. 1134586 Registered with legal liability in England and Wales no. 7135273 Registered offices: 3/7 Temple Chambers, Temple Avenue, London EC4Y 0HP 1
Introduction 1. This Briefing sets out a simple proposal to address the serious injustice and unnecessary expense caused by the current system for repatriating British prisoners to the UK. This paper deals with only one aspect of prisoner transfer: the application of early release provisions to repatriated prisoners sentences. Reform to make the law operate in a fairer way is straightforward and uncontroversial, would be in accordance with the UK s current prisoner transfer agreements and would not require the renegotiation of any international conventions or treaties. Amendment would be needed to domestic law only. In particular, it would not involve any re-sentencing or conversion of sentences by the UK. FTI considers that the suggested change could be achieved by including a provision in the Legal Aid, Sentencing and Punishment of Offenders Bill. 1 Background The benefits of repatriation 2. In 2010 89 prisoners were repatriated to England and Wales to continue serving sentences imposed abroad. 2 Repatriation improves rehabilitation prospects; prisoners who are able to return to their home countries are in a position to re-establish links with family and friends and start to build the support networks which will be crucial in order to ensure their successful reintegration into society. 3 Effective rehabilitation can limit recidivism rates, avoiding the creation of further victims of crime and saving the resources of the police, courts and prison service. Sentence to serve in the UK: the law at present 3. Once a prisoner is transferred to the UK, the UK authorities will continue to enforce the sentence the prisoner was given abroad. 4 However, the UK applies its own rules for the early release of repatriated prisoners. 4. The part of the sentence the person will have to serve once transferred is called the balance to serve. The balance to serve is calculated by deducting the following from the total original sentence: The time already served; and 1 Published 21 June 2011 2 Answer to a Parliamentary Question, Lord McNally, House of Lords, 15 March 2011 3 Recognised by the EU and the stated purpose of the Framework Decision on the mutual recognition of custodial sentences (Framework Decision 2008/909) 4 Prisoner transfer is governed by the Repatriation of Prisoners Act 1984; this enables the UK to give effect to the various international conventions and treaties on prisoner transfer to which it is a signatory. At present prisoner transfer within Europe is governed by the 1983 Council of Europe Convention on the Transfer of Sentenced Persons, to which the UK is a signatory. This is due to be replaced for EU states by the Framework Decision on the mutual recognition of custodial sentences (this must be implemented by all 27 Member States by 5 December 2011). The repatriation of British prisoners is also governed by bilateral treaties which the UK has entered into with other states. 2
Any remission gained for good behaviour. Most prisoners convicted in the UK are released on licence at the halfway stage of their sentence. 5 This is calculated by taking into account the whole of the prisoner s sentence, FTI case study: Eric Lewis (not his e.g. if a person is sentenced in the UK to 10 real name) years imprisonment then they will normally be released on licence at the halfway point (i.e. after five years). Once the prisoner is released they will remain on licence until the end of the sentence. 5. By contrast, repatriated prisoners serving determinate sentences 6 are released at the halfway stage of their balance to serve 7 (the sentence which remains to be served at the time of the transfer), not at the halfway stage of their total sentence. This system means that when a repatriated prisoner is released on licence will depend on when they were transferred. Example A is convicted of an offence and sentenced to 20 years imprisonment in the UK. B is convicted of an offence and sentenced to 20 years imprisonment in India. After serving half of his sentence (10 years) A is released on licence. He remains on licence for 10 years (the remainder of his sentence). B is transferred to the UK after serving 10 years in India. His balance to serve is therefore 10 years (i.e. the difference between the time served and the total sentence). He is released on licence at the halfway point of his balance to serve (five years) and remains on licence for a further five years. Despite the fact that A and B were both given the same sentence, simply because he is a Eric, a British national from Wales, was arrested on drugs charges in January 2004 while visiting family in Ghana. In April of the same year he was convicted at trial and sentenced to 20 years imprisonment. After exhausting all avenues of appeal in Ghana, Eric was repatriated to the UK in 2010. As he had spent six years in a Ghanaian prison he had 14 years of his sentence remaining. UK early release provisions mean he has to serve half of this period in the UK. He will therefore be released on licence after seven years. Keeping Eric in prison for this amount of time will cost approximately 315,000 (on average it costs 45,000 for each prison place per year, source: The Prison Reform Trust). Under FTI s proposed reform Eric would only need to spend four years in prison in the UK, as after four years he would have served a total of 10 years in prison (half of his 20 year sentence). This would mean he would serve three fewer years in prison in the UK, saving approximately 135,000. transferred prisoner, B has spent five years longer in prison than A (a total of 15 years to A s 10). 5 See s.244 Criminal Justice Act 2003 6 I.e. a sentence of imprisonment for a fixed period, as opposed to an indeterminate sentence (e.g. life) 7 By virtue of section 2(1) of Schedule 1 to the Repatriation of Prisoners Act 1984 3
The need for reform 6. The application of early release provisions to the sentence remaining to be served rather than the whole sentence leads to unfairness for repatriated prisoners: Arbitrary imprisonment: In most cases the total amount of time a repatriated prisoner will serve in prison is based on an arbitrary factor: the date of transfer. This is something which varies from case to case and can often be pushed back because of delays which are in no way the fault of the prisoner requesting transfer. In FTI s experience arranging a transfer takes, on average, 18 months, and in some cases systemic delays can mean this is extended to over 2 years. Basing early release on the date of transfer unfairly extends the amount of time some repatriated prisoners spend in prison. Wasted resources: Unnecessarily detaining repatriated prisoners has significant cost implications. On average it costs 45,000 to detain a prisoner for a year in the UK. 8 In a period of austerity when the UK s prison population is close to maximum capacity, 9 unnecessary imprisonment is unacceptable. The proposed reform could save millions of pounds a year. Disincentive for prisoners to exercise legal rights: The current system also creates a disincentive for defendants abroad to exercise their right to a trial and an effective appeal. If the defendant pleads guilty, or is convicted and does not appeal, then he or she can apply for transfer back to the UK sooner in an effort to minimise the total amount of time they will spend in prison. When faced with the prospect FTI case study: Patrick Malluzzo Patrick, a 32 year-old British national from Kent, was arrested in 2004 during a backpacking trip in India. He spent two years in pre-trial detention during which he claims he was beaten by police and forced to make a televised confession. Patrick was found guilty and sentenced to 10 years imprisonment in 2006. It took over four years for the Rajasthan High Court to hear Patrick s appeal. The appeal was unsuccessful, and Patrick decided not to lodge a further appeal with the Indian Supreme Court, as this could have meant spending another two years in jail in India. Instead, Patrick applied to be transferred to a UK prison to serve the remainder of his sentence closer to home. Patrick s transfer was delayed and he spent seven years of his ten year sentence in an Indian prison before being transferred to the UK on 1 February 2011. According to UK early release rules Patrick s balance to serve was three years. He is therefore serving half of this (one and a half years) before he can be released on licence. Under FTI s proposed reform Patrick could have been eligible for immediate release following transfer to the UK as he had already served over half of his sentence in India. 8 The Prison Reform Trust, Bromley Briefings Prison Factfile, December 2010 9 Ministry of Justice, National Offenders Management Service, Population and Capacity Briefing for 17 June 2011 4
of delays at trial and with appeals, the way the transfer system operates can create a perverse incentive for defendants not to exercise their legal rights. A fairer system 7. There is no principled reason for applying early release provisions to the sentence remaining to be served post-transfer as opposed to the whole sentence. Changing this will not have an adverse impact on prisoner transfer agreements and the ability for British prisoners to be transferred to the UK. The UK would continue to enforce the full sentence imposed abroad, but simply alter the way in which early release provisions are applied to the sentences of transferred prisoners. Indeed, it would bring the enforcement of sentences for transferred prisoners more into line with the general law on enforcement practice. 8. Such an approach is perfectly compatible with international law concerning repatriation. 10 The UK is one of the few countries which counts from the date of transfer rather than initial detention when calculating how early release provisions should apply to the sentence of a repatriated prisoner. Germany, Austria and the Netherlands, for example, all count from the date of arrest. 11 Amending the law 9. Unfairness in the current system can be eradicated by ensuring that early release calculations are applied to the whole sentence rather than the balance to serve. A minor amendment to the Repatriation of Prisoners Act 1984 is needed to achieve this. This amendment would still allow the repatriation of prisoners who have served over half their sentence abroad (e.g. a person sentenced to 10 years imprisonment who has served six years one year beyond the halfway point of their total sentence). Such a prisoner could be detained in the UK following transfer until the effect of early release provisions on the sentence was confirmed. 12 The Repatriation of Prisoners Act 1984 already contains provisions which would allow the detention of a transferred prisoner in such a situation. 13 Conclusion 10. Repatriated prisoners have often been subjected to appalling prison conditions in foreign prisons and have been detained hundreds or thousands of miles away from family 10 See, for example, Article 17(1) of the Framework Decision on the mutual recognition of custodial sentences, which states, The authorities of the executing State alone shall [...] be competent to decide on the procedures for enforcement and to determine all the measures relating thereto, including the grounds for early or conditional release. 11 Research on repatriated prisoners and early release provisions in other states courtesy of Freshfields Bruckhaus Derringer LLP. Indeed, other countries go much further; converting the sentences of some transferred prisoners 12 A similar process occurs presently where a person serving a life sentence is transferred to the UK; see section 273 of the Criminal Justice Act 2003 13 For example, sections 3(1) and 5(2) 5
members. They should not have to spend longer in prison in the UK simply because they were convicted abroad. The overall average cost of each prison place in the UK is 45,000 a year. 14 Incarcerating any repatriated prisoners for longer than necessary is also a waste of resources. The proposed reform could be achieved with minimal statutory amendment and would not have a negative impact on the prisoner transfer relationships the UK has with other countries. FTI hopes that the Government will consider introducing amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill to accommodate this important and uncontroversial reform. Fair Trials International, June 2011 14 The Prison Reform Trust, Bromley Briefings Prison Factfile, December 2010 6