Serving Time in a Foreign Land
Seminar, 22 March 2012
EUROPEAN CRIMINAL LAW ASSOCIATION
In association with
INSTITUTE OF ADVANCED LEGAL STUDIES
Anand Doobay
Consultant, Peters & Peters
15 Fetter Lane, London, EC4A 1BW
Tel: + 44 (0)20 7822 7777
Fax: + 44 (0)20 7822 7788
adoobay@petersandpeters.com
www.petersandpeters.com
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A. International, Regional and Domestic Law
i.
Convention on the Transfer of Sentenced Persons (1983)
This Council of Europe Convention provides for the transfer of a person sentenced in the territory of
one Party to the convention to the territory of another Party (the administering state) in order to
serve the sentence. There are a number of non-members of the Council of Europe which are parties
to this Convention:
Australia, Bahamas, Bolivia, Canada, Chile, Costa Rica, Ecuador, Honduras, Israel, Japan, Korea,
Mauritius, Mexico, Panama, Tonga, Trinidad and Tobago, United States of America and Venezuela.
The conditions for transfer are:



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
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The sentenced person is a national of the administering State;1
The judgment is final;
There are at least 6 months remaining of the sentence;
The sentenced person consents;
The conduct which constitutes the crime for which the sentence has been imposed also
constitute a crime under the law of the administering State (the double criminality rule); and
Both the sentencing and administering States agree to the transfer.
The administering state either continues the enforcement of the sentence or converts the sentence
into a domestic sentence.
The transfer of sentenced persons is a lengthy process. According to Prisoners Abroad,2 it takes
about 12-18 months from the point when a sentenced person submits an application for transfer to
the time when they arrive in the UK. Transfer from the UK to another country can take up to two
years.
The process of transfer to the UK usually involves the sentenced person sending an expression of
interest to transfer to the local prison authorities and / or to the British Embassy in the sentencing
state. If approved at this stage, the Embassy or prison authorities forward the application to the UK
(the National Offender Management Service (“NOMS”), Cross Border Transfer Section) for it to be
considered. If NOMS gives its initial approval, it will send confirmation to the Ministry of Justice in
the sentencing state (“MOJ”). If the MOJ also gives its initial approval, it will send confirmation back
to NOMS. NOMS will then liaise with the police, passport agency and the Home Office, as necessary,
1
‘National’ can be defined as each Party (Article 3(4)). The UK has defined ‘national’ in its instrument of
ratification of 30 April 1985: ‘… a British citizen or any person whose transfer the Government of the United
Kingdom consider appropriate having regard to any close ties which that person has with the United Kingdom;
and, in relation to any territory to which the application of this Convention is extended in accordance with
Article 20(2), any person who is defined as a national in relation to that territory at the time of such extension.’
2
Prisoners Abroad, ‘Factsheet: Prisoner transfer to the UK’ (September 2010).
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and a final decision will be made by the UK. It will then either refuse the application or send its
agreement to the MOJ which will then makes its final decision and either refuse or send a request
for consent to the sentenced person. If the sentenced person provides their consent to the MOJ
then it will notify the local prison authorities that it consents. The local prison authorities then send
a request to the UK prison authorities to plan the transfer and prison guard escort. Once these
practical arrangements have been made the sentenced person will be accompanied by two UK
prison officers to the UK.
If the sentenced person is applying for transfer from the USA and is held in a state prison then the
transfer must be agreed at state level before being considered at federal level. In any event, the
sentenced person must attend a Consent Verification Hearing, after which the Department of Justice
gives its final approval for transfer. Any financial requirements of the sentence must be fulfilled
normally before approval will be given.
ii.
Additional Protocol to the Convention on the Transfer of Sentenced Persons (1997)
The Additional Protocol provides for the transfer of a sentence (without the consent of the
sentenced person) where the person has fled the sentencing state or if deportation or expulsion is
included as part of the sentence3.
Although the administering state must take account of the opinion of the sentenced person before
agreeing to the transfer, it is not bound to accept it.
This protocol can be applied to sentences imposed before or after its entry into force. There are
currently no non-member states of the Council of Europe which are party to the Protocol.
iii.
European Framework Decision 2008/909/JHA – mutual recognition of custodial
sentences and measures involving deprivation of liberty
Deadline for transposition: 5.12.2011
This Framework Decision will replace the Council of Europe Convention for prisoner transfers
between EU Member States. It applies the principle of mutual recognition to allow one Member
State to recognise and enforce a custodial sentence imposed in another Member State.
The judgment may be forwarded to one of the following Member States:



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The state of nationality of the sentenced person in which s/he lives;
The state of nationality to which the sentenced person will be deported once s/he is
released (even if it is not the Member State of residence); or
Another Member State (such as the state in which the sentence person resides) which
consents to the forwarding of the judgment (however this requires a consultation
between the competent authorities of the issuing and executing states on whether
Transfer is ordinarily to the state to which the person will be deported or expelled.
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transfer to that state would serve the purpose of facilitating the sentenced person’s
social rehabilitation).
The executing state may, on its own initiative, request the issuing state to forward the judgment to it
so that the sentenced person may serve their sentence in the executing state. The sentenced person
may also request the issuing state or executing state to initiate a procedure for forwarding the
judgment under this Framework Decision; however such a request does not create an obligation on
either state to do so.
The criteria for forwarding a judgment to another EU Member State are:
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The sentenced person is in the issuing state or the executing state;
The issuing and executing states are satisfied that enforcement of the sentence in the
executing state will facilitate the social rehabilitation of the sentenced person; and
The sentenced person has given consent (where required).
The consent of the sentenced person is required unless the transfer is to:
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The Member State of nationality in which the sentenced person lives;
The Member State to which the sentenced person will be deported as a result of the
judgment; or
The Member State to which the sentenced person has fled.
However, if the sentenced person is still in the issuing state, they will be given an opportunity to
provide their opinion on transfer which will be taken into consideration.
Double Criminality
There is no double criminality requirement if the sentence is imposed after conviction for an offence
which falls within the 32 categories of offences listed in the Framework Decision.4 A Member State
may declare that it does not recognise the list, in which case the recognition and enforcement of all
judgments will be dependent upon satisfying the double criminality rule- the UK has not done this. If
the sentence is imposed for an offence not within the list, the executing state may make recognition
of the judgment dependent upon satisfaction of the double criminality rule.
Incompatibility of the sentence with the law of the executing state
The sentence may be changed in the executing state if its term exceeds the maximum penalty for
the same offence in the executing state or if the sentence is incompatible with the law of the
executing state. However, the sentence cannot be converted into a financial penalty and it must not
be increased or made more severe.
Grounds for non-recognition and non-enforcement
There are a number of grounds on which a Member State can refuse to recognise or enforce a
sentence and these include:
4
This list corresponds with the list contained in Framework Decision 2002/584/JHA on the European arrest
warrant and the surrender procedures between Member States at Article 2(2).
4
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Double jeopardy;
Double criminality;
Immunity;
The sentenced person is below the age of criminal responsibility in the executing state;
The remaining sentence is less than 6 months;
The offence was committed on the territory of the executing state.
Time Limits
The executing state must decide as quickly as possible whether to recognise and enforce the
sentence. The final decision on recognition of judgment and enforcement must be taken within 90
days of receipt of the judgment and certificate from the issuing state, unless there are good reasons
why a longer period is needed.
Arrangements for the transfer of the sentenced person will be agreed between the competent
authorities of the issuing and executing states. Transfer must take place no later than 30 days after
the decision to enforce the sentence.
iv.
Domestic Implementing Legislation: The Repatriation of Prisoners Act 1984
This Act provides for the transfer of prisoners to or from the UK. It will be amended by the Legal Aid,
Sentencing and Punishment of Offenders Bill to implement the two elements of Framework Decision
on mutual recognition of custodial sentences and measures involving deprivation of liberty
2008/909/JHA which are not already implemented. Clause 104 provides for the insertion of a
specialty clause into the Repatriation of Prisoners Act. Clause 105 provides for the insertion of a
transit section into the Repatriation of Prisoners Act. Transit provisions permit the movement of a
sentenced person through other states to the state where the sentence will be executed.
v.
Article 8 – Norris and HH & PH in the Supreme Court
Three joined appeals were recently heard by the Supreme Court and one of these was an appeal
from the decision in HH & PH v Deputy Prosecutor of the Italian Republic, Genoa [2011] EWHC 1145
(Admin). The appeal related to the protection of the ECHR Article 8 rights of the children of
defendants facing extradition and it was submitted that in order to ensure the Article 8 rights of
each child affected by the extradition are properly safeguarded, the Supreme Court must modify the
approach set out in Norris v Government of USA (No. 2) [2010] 2 AC 487 in light of ZH (Tanzania) v
Secretary of State for the Home Department [2011] 2 WLR 148.
The Supreme Court’s decision in Norris found that extradition will not be considered to be a
disproportionate interference with Article 8 rights unless it results in “exceptionally serious
consequences” or an “exceptionally compelling feature” giving rise to “the gravest effects of
interference with family life”. Since the decision in Norris, no domestic court has found that
extradition of a parent would result in the disproportionate interference of a child’s Article 8 rights.
The relevant passages from the Norris judgement are set out below:
“[56] The reality is that only if some quite exceptionally compelling feature, or combination of
features, is present that interference with family life consequent upon extradition will be other than
proportionate to the objective that extradition serves. That, no doubt, is what the Commission had in
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mind in Launder 25 EHRR CD 67, 73 when it stated that it was only in exceptional circumstances that
extradition would be an unjustified or disproportionate interference with the right to respect for
family life. I can see no reason why the District Judge should not, when considering a challenge to
extradition founded on art 8, explain his rejection of such a challenge, where appropriate, by
remarking that there was nothing out of the ordinary or exceptional in the consequences that
extradition would have for the family life of the person resisting extradition. “Exceptional
circumstances” is a phrase that says little about the nature of the circumstances. Instead of saying
that interference with art 8 rights can only outweigh the importance of extradition in exceptional
circumstances it is more accurate and more helpful, to say that the consequences of interference
with art 8 rights must be exceptionally serious before this can outweigh the importance of
extradition. A judge should not be criticised if, as part of his process of reasoning, he considers how, if
at all, the nature and extent of the impact of extradition on family life would differ from the normal
consequences of extradition.
[62] The judge then has to consider a considerable number of possible statutory barriers to
extradition. These include the matters that might violate human rights…. It is only after he has done
this that the judge has to consider whether extradition will be compatible with Convention rights
pursuant to s 87 of the 2003 Act. This is a fact-specific exercise, and the judge must have regard to
the relevant features of the individual case. It is at this point that it is legitimate for the judge to
consider whether there are any relevant features that are unusually or exceptionally compelling. In
the absence of such features, the consideration is likely to be relatively brief. If, however, the nature
or extent of the interference with art 8 rights is exceptionally serious, careful consideration must be
given to whether such interference is justified. In such a situation the gravity, or lack of gravity, of the
offence may be material.
[63] I do not accept Mr Perry's submission that the gravity of the offence can never be of relevance
where an issue of proportionality arises in the human rights context. The importance of giving effect
to extradition arrangements will always be a significant factor, regardless of the details of the
particular offence. Usually the nature of the offence will have no bearing on the extradition decision.
If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one
of a combination of features that may render extradition a disproportionate interference with human
rights. Rejecting an extradition request may mean that a criminal never stands trial for his crime. The
significance of this will depend upon the gravity of the offence. ….
[64] When considering the impact of extradition on family life, this question does not fall to be
considered simply from the viewpoint of the extraditee. …. This issue was considered by the House of
Lords in the immigration context in Beoku-Betts v Secretary of State for the Home Department [2008]
UKHL 39, [2009] AC 115, [2008] 4 All ER 1146. After considering the Strasbourg jurisprudence the
House concluded that, when considering interference with art 8, the family unit had to be considered
as a whole, and each family member had to be regarded as a victim. I consider that this is equally the
position in the context of extradition.
[65] Indeed, in trying to envisage a situation in which interference with art 8 might prevent
extradition, I have concluded that the effect of extradition on innocent members of the extraditee's
family might well be a particularly cogent consideration. If extradition for an offence of no great
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gravity were sought in relation to someone who had sole responsibility for an incapacitated family
member, this combination of circumstances might well lead a judge to discharge the extraditee
under s 87 of the 2003 Act.
.......................
[82] In a case such as this it is the exception that proves the rule. One has to consider the effect on
the public interest in the prevention of crime if any Defendant with family ties and dependencies such
as those which bind Mr Norris and his wife was thereby rendered immune from being extradited to
be tried for serious wrongdoing. The answer is that the public interest would be seriously damaged. It
is for this reason that only the gravest effects of interference with family life will be capable of
rendering extradition disproportionate to the public interest that it serves. This is not such a case.
Unhappily the delay that has been caused by Mr Norris' efforts to avoid extradition to the United
States has increased the severity of the consequences of that extradition for his family life. But those
consequences do not undo the justification that exists for that interference.”
vi.
Framework Decision 2009/829/JHA on Mutual recognition of supervision measures
Deadline for transposition: 1.12.2012
This Framework Decision allows a person who is subject to criminal proceedings in a Member State
in which they are not resident to be supervised by the Member State of residence whilst awaiting
trial. This should improve the current situation which only allows for detention or release outside of
the prosecuting Member State without enforceable conditions. The Framework Decision also aims to
strengthen the right to liberty and to enhance the presumption of innocence.
The Framework Decision should reduce the possibility of discriminatory treatment as non-residents
may be kept in custody pending trial in situations where a resident, who could be subject to
enforceable conditions, would be released on bail.
The Framework Decision applies to the following supervision measures:
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A requirement that the person notify the competent authority in the executing state of any
change in residence;
A prohibition from entering certain localities, places or defined areas in the issuing or
executing state;
An obligation to remain at a specific place during specific times;
Limitations on leaving the territory of the executing state;
An obligation to report to a specific authority at certain times;
A prohibition on contact with certain persons in relation to the offence(s) allegedly
committed
It also allows for a Member State to register further types of supervision measure which it is
prepared to monitor.
How it works
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If the person consents to return to the Member State of residence, the supervision measures order
will be sent to that Member State for execution. The supervision measures order may be sent to
another Member State where the person requests transfer to that country and the Member State
consents. The executing state should enforce the order within twenty days of receipt unless it
decides a ground exists for non-recognition. The grounds for non-recognition include:
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The lack of consent of the person, unless transfer is to the Member State of residence of the
person who has requested the transfer;
Double jeopardy;
Double criminality;
The prosecution falls within the competence of the executing State;
Immunity;
The sentenced person is below the age of criminal responsibility in the executing state ;
In the event of breach of supervision measures, the executing state would have to refuse to
surrender the person in accordance with the European Arrest Warrant system.
If any part of the supervision measures is incompatible with the law of the executing state, the
measure may be adapted. However, it cannot be made more severe.
Double criminality
The Framework Decision contains a list of categories of offences which do not require double
criminality. For any other offence the executing state may require double criminality.
Subsequent decisions
The issuing country takes any subsequent decisions such as renewal, review and withdrawal of the
original decision, considering changes to the supervision measures and deciding whether to issue an
arrest warrant.
If the issuing country issues an arrest warrant, the person must be surrendered according to the
European arrest warrant procedure.
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B. Alternatives to use of the European Arrest Warrant
Measure
Deadline
Brief Description
Implementing
Legislation
European Investigation In draft5
Order
Would allow one EU Member State to
carry out investigative measures at the
request of another, including, e.g.,
witness interviews, search and seizure,
interception of telecommunications
Crime
(International 26.4.2004 Allows for a document or processes6
Co-operation)
Act
from the government of a country
2003, Part 1
outside the UK to be served on a
person in the UK and vice versa
Framework Decision 1.12.2012 Provides for the supervision of a person
2009/829/JHA
–
who is subject to criminal proceedings
Mutual recognition of
in a state in which s/he is not resident
pre-trial
supervision
to be supervised by authorities in the
orders
Member State of residence whilst
awaiting trial
Framework Decision 22.3.2007 Fines or penalties of €70 or more which
2005/214/JHA
–
are imposed by authorities in one
mutual recognition of
Member State are to be recognised and
financial penalties
enforced in another Member State.7
Framework Decision 6.12.2011 Establishes rules according to which a
2008/947/JHA
–
Member State other than the Member
mutual recognition of
State in which the person was
judgments
and
sentenced, recognises judgments and,
probation decisions
where applicable, probation decisions
and supervises probation measures
imposed on the basis of a judgment, or
alternative sanctions contained in such
a judgment
Framework Decision 5.12.2011 Allows for an individual who has been
2008/909/JHA - mutual
given a custodial sentence in one EU
recognition
of
Member State to serve the sentence in
custodial
sentences
another EU Member State
and
measures
involving deprivation
of liberty
5
N/A
None yet
Magistrates’ Court
Act 1980; Courts Act
2003
Criminal Justice and
Licensing (Scotland)
Act 2010
There does not
appear to be any
implementing
legislation yet for
England and Wales.
Repatriation
of
Prisoners Act 1984
A general approach was adopted by the Council of the European Union on 14 December 2011. Negotiations
with the European Parliament will now begin. On 27 July 2010, the UK opted-in to the proposed Directive.
6
This includes processes made in that country outside the UK for the purposes of criminal proceedings,
administrative proceedings, appeals in administrative proceedings and clemency proceedings.
7
In England and Wales, enforcement takes place in the magistrates’ court where the individual resides or has
property. The magistrates’ court must treat the penalty as though it is a sum payable on summary conviction.
It may be enforced under Part 3 of the Magistrates’ Court Act 1980, and Schedules 5 and 6 of the Courts Act
2003.
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