Willcox, R (on the application of) v Secretary of State for Justice [2009] EWHC 1483 (Admin)

[2009] EWHC 1483 (Admin)

Case No CO/1197/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 1 July 2009

Before

MR JUSTICE OUSELEY

MR JUSTICE DAVIS

THE QUEEN ON THE APPLICATION OF:

Between

STEVEN WILLCOXClaimant

SECRETARY OF STATE FOR JUSTICEDefendant

Mr E Fitzgerald QC and Mr J Jones (instructed by Moss Solicitors) for Claimant

Miss C Ivimy (instructed by Treasury Solicitors) for Defendant

Hearing Hearing dates: 23 rd& 24 th April 2009

Judgment

Mr Justice Ouseley:

[1]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.

[2]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.

[3]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

[4]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.

[5]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.

[6]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.

[7]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.”

[8]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.

[9]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.

[10]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 received a substantial fine. He also received 2 months for the other drugs offence. No other mitigating factor seems to have been considered.

[11]There is a general statutory provision for reduction in sentence for “extenuating circumstances” which “may include lack of intelligence, serious distress, previous good conduct, repentance and efforts made by the offender to minimize the injurious consequences of the offence, voluntary surrender to an official, the information given to the Court for the benefit of the trial or other circumstance which the Court considers to be of similar nature.” It remains uncertain whether the fact, if so found or assumed, that possession was for personal use, could form part of any mitigation. It would rather undermine the intended effect of the irrebuttable presumption in fixing the appropriate range of prison terms, and for over 20 grams pure, the choice is limited to life or death. Mr Willcox says that he was not represented when he came to be sentenced; it may be that there was nothing relevant which could have been said about simple possession.

The repatriation provisions

[12]Thebilateral Prisoner Transfer Agreement, PTA, between the UK and Thailand on the Transfer of Offenders and on Co-operation in the Enforcement of Penal Sentences 1990, in force from 1991, recites the desirability of co-operation in law enforcement and the re-integration of offenders into society, and considers that those objectives should be fulfilled by giving foreigners in prison for committing a criminal offence “the opportunity to serve their sentences within their own society.” Article 2 refers to the transfer of an offender under the Agreement “in order to serve the sentence imposed on him.” The definitions of “offender” and of “sentence” in Article 1 mean that no one can be an “offender” or be serving a “sentence” without the order of a criminal “court”. Article 3 lays down the conditions for the operation of the Agreement, the first of which is that “(a) the acts or omissions on account of which the sentence has been imposed constitute the essential elements of a criminal offence according to the law of the receiving State or would constitute such elements of a criminal offence if committed on its territory”. The only sentences which can be transferred involve deprivation of liberty. Any minimum term has to be served first, here 4 years. There must be no further legal proceeding pending in relation to the offence or sentence. Both state parties and the prisoner must agree to the transfer. Certain Thai offences are excluded from the scope of the Agreement, including offences against its Royal family, offences against its art treasure legislation and those relating to national security. All conditions were satisfied.

[13]Procedurally, the Agreement requires prisoners to be informed of its substance; the receiving state, in this instance the UK, makes a request to Thailand, in this instance the transferring state; the transferring state has to approve the transfer, and did. The transferring state provides the receiving state with a statement of the facts upon which the sentence was based and other details of the sentence.

[14]Articles 5 “Retention of Jurisdiction” and 6 “Procedure for Enforcement of Sentence” are important. Article 5 provides:

“In respect of sentences to be enforced pursuant to this Agreement, the transferring State shall retain exclusive jurisdiction regarding the judgements of its courts, the sentences imposed by them and any procedures for revision, modification or cancellation of those judgements and sentences.” 15. Article 6 continues: “(1) The continued enforcement of the sentence after transfer shall be governed by the laws and procedures of the receiving State, including those governing conditions for service of imprisonment, confinement or other deprivation of liberty, and those providing for the reduction of the term of imprisonment, confinement or other deprivation of liberty by parole, conditional release, remission or otherwise. Subject to paragraph (3) of this Article, the receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State. No sentence of deprivation of liberty shall be enforced by the receiving State in such a way as to extend it beyond the period specified in the sentence of the court of the transferring State. Such enforcement shall as far as possible correspond with the sentence imposed in the transferring State.”

Mr Fitzgerald placed great emphasis on “as far as possible”.

[15]Very broadly, these provisions mean that the part of the sentence imposed by the transferring state which remains unserved at transfer, after allowance for any remission earned in the transferring state, is served in the receiving state and is subject to the release provisions of that state. This has the effect that a prisoner transferred subject to release after serving two thirds of his sentence, as Mr Willcox would have been if he had stayed in Thailand, benefits from release now at the half way point of his sentence. Mr Willcox will also benefit from any Royal amnesties or pardons granted by Thailand.

[16]The receiving state is required by the PTA to inform the sentencing state of the completion of sentence, of any escape and to respond to requests for a special report. If an event causes the sentence no longer to be enforceable in the transferring state, that terminates its enforcement in the receiving state. It is clear that transfer does not mean that the transferring state washes its hands of the prisoner.

[17]When the National Offender Management Service wrote to the Thai Government in June 2007 in connection with this transfer, it confirmed that it would apply the “continued enforcement” provisions of the Convention on the Transfer of Sentenced Persons 1985, which is in force between member states of the Council of Europe. That Convention does not apply between the UK and Thailand. This comment was nonetheless a representation that the UK would not seek to substitute its view of what the sentence in the UK would have been for the offence for which the prisoner had been sentenced in Thailand, but would enforce the sentence of the Thai Court, as the PTA required. It also told the Thai Government that Mr Willcox would be eligible for parole at the halfway stage but would otherwise serve two-thirds of his sentence before release, which was then the case, but we were told that this is not in fact the current position.

[18]The 1985 Convention permits the sentence to be converted on transfer to that which the UK Courts would have imposed, but only where the transferring state has been told, before the transfer of any particular prisoner, that the receiving state is intending to apply that provision rather than the “continued enforcement” provision. This procedure gives the transferring state the option to refuse the transfer. Such an option was not acceptable to the Thai Government when the bilateral PTA was negotiated, and the Thai Government would not agree to transfers on that basis. Indeed, the UK Government declared that it would only use the “continued enforcement” optionwhen it ratified the Convention anyway.

[19]The provisions of Article 3(a) as to equivalent criminality were satisfied in the NOMS letter by the enclosure of four pages photocopied from Archbold, which dealt with both simple possession and possession with intent to supply under the Misuse of Drugs Act 1971.Mr Willcox had been convicted of both types of offence, although the sentence for simple possession had been served.

[20]The terms of the transfer were spelt out to Mr Willcox in a two page letter from NOMS, which he signed to show his consent. It was made explicit that the UK would enforce the sentence imposed, subject to the short reduction which it had by then attracted, and subject to the then prevailing parole and early release provisions of UK law. It was also explicitly stated that, after transfer, he could not challenge his conviction or sentence through the British courts. The right to review remained with the sentencing state, and any challenge had to be made before transfer.

[21]The various warrants by virtue of which his detention in the UK is lawful were issued under the Repatriation of Prisoners Act 1984. The warrant cannot be issued unless the transfer has been agreed with the transferring state and with the prisoner, where the international arrangement requires those agreements, as it does here. The Minister must be satisfied that all reasonable steps have been taken to inform the prisoner in writing in English of the material parts of the international arrangements being used, and of the effect of the transfer on his detention; s1(4). There is no issue but that those provisions were fully complied with. The Minister must also be satisfied that consent was actually given; s1(5). There is no dispute but that consent was given. Mr Willcox asserts that he had no choice but to agree to transfer on any terms because of the terrible conditions in which he was held in the Thai gaol, and so it was not a free consent.

[22]It is the warrant under s3 which makes detention lawful in the UK. S3 contains other important provisions. S3 (1)( c) requires the warrant to contain those provisions which the Minister of Justice considers appropriate for giving effect to the international arrangement under which the transfer was effected, here the PTA with Thailand. Only provisions for detention which may be made by a UK court in the exercise of its criminal jurisdiction, or to give effect to its orders, are permitted. One of those provisions in the warrant is the statement of the duration of sentence. In deciding what provisions are appropriate, the Minister, by virtue of s3 (3): “shall, to the extent that it appears to him consistent with those arrangement to do so, have regard to the inappropriateness of the warrant’s containing provisions which- (a) are equivalent to more than the maximum penalties (if any) that may be imposed on a person who, in the part of the United Kingdom in which the prisoner is to be detained, commits an offence corresponding to that in respect of which the prisoner is required to be detained in the country or territory from which he is to be transferred;”.

[23]The effect of this is to require the Minister to consider the maximum for the equivalent English offence. In reality, this is applied so that the maximum is not exceeded. This “adaptation” of the sentence, rather than its “conversion”, as the jargon has it, is recognised by Thailand and other states as being what the UK will do. But the language of the Act, though not of the PTA, does not prohibit enforcement of a sentence which exceeds the UK maximum.

[24]I mention the provisions of the 1985 Convention briefly for their contrast with the PTA, and because of the reference made to them by the UK government in the course of transfer and in submission to this Court. Much is the same so far as material. Article 9 creates the option of “continued enforcement” of the sentence imposed by the transferring state, or “conversion” to the sentence which the receiving state would impose. But it is an option which must be notified before transfer, and that would enable the request to be refused. Whichever course is followed, Article 9 (3) applies:

“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 continues:

“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. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so required, 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.”

[25]Article 11 deals with conversion of sentence. But the converting body in the receiving state is bound by the findings of fact in so far as they appear in the judgment of the transferring state’s court. And Article 13 gives exclusive power of review of any aspect of the judgment to the transferring state. There is an equivalent provision for notification to the transferring state of the progress of the prisoner in custody. The basis upon which continued detention in the UK may be held unlawful by virtue of the trial process abroad

[26]Both Mr Fitzgerald QC for the claimant and Miss Ivimy for the Secretary of State took as their starting point that if there had been a flagrant denial of justice in Thailand, the English Courts could not enforce the sentence which resulted. That would be to enforce an arbitrary detention contrary to Article 5(1)(a) ECHR: such detention could not be regarded as serving a sentence following conviction by a competent court. The RPA assumes necessarily that the origin of the detention being authorised by a warrant issued by the Minister of Justice is a conviction by a competent court. The RPA would have to be interpreted so that it only applied in such circumstances. The language of the PTA is to similar effect. The consequence otherwise would be a breach of the prisoner’s

Article 5 ECHR

rights in the UK.

[27]Both agreed that a foreign conviction would not make the consequent detention in the UK on transfer arbitrary, if it merely involved a breach of

Article 6 ECHR

. The breach would have to have been so grave as be a flagrant denial of justice, the severe test by which the ECtHR measures the point at which the acts or omissions of a non-party state could affect the obligations of a state party.

[28]This "flagrant denial of justice" test, in the context of prisoner transfer, was set out in Drozd and Janousek v France and Spain

(1992) 14 EHRR 745

, although it is a familiar one in the context of trials in states which are not party to the ECHR. The appellants were convicted of robbery in Andorra by the Andorran Court and sentenced to substantial terms of imprisonment. Andorra was not then a party to the ECHR. Andorra’s unique constitutional position vis a vis France and Spain had led to arrangements for convicted persons to serve their sentences in France. They claimed that their trial in Andorra had breached Article 6, and so their detention in France was unlawful. The ECtHR held that it had no jurisdiction to enquire whether Article 6 had been breached; and held that the robbers’ detention complied with the procedures prescribed by French law. But the Court nonetheless went on to consider their trial before the Andorran court. It said, at paragraph 110:

“As the Convention does not require the Contracting Parties to impose its standards on third States or territories, France was not obliged to verify whether the proceedings which resulted in the conviction were compatible with all the requirements of Article 6 of the Convention. To require such a review of the manner in which a court not bound by the Convention had applied the principles enshrined in Article 6 would also thwart the current trend towards strengthening international co-operation in the administration of justice, a trend which is in principle in the interests of the persons concerned. The Contracting States are, however, obliged to refuse their co-operation if it emerges that the conviction is the result of a flagrant denial of justice.”

[29]There has been a good deal of recent judicial examination of what the phrase “flagrant denial of justice” means, and how it might apply in practice. I shall come to some of that shortly; but I shall deal at this stage with the asserted obligation to refuse co-operation with a transfer which follows a trial which was a flagrant denial of justice, the problem of applying that so as to refuse a transfer request which on its face satisfies the requirements of the PTA or other Conventions, and the particular problem, which arises in this case, of applying that obligation after a transfer has taken place which, on the claimant's own arguments, ought not to have occurred. These are issues which troubled me considerably during and after argument. And the limited analysis of these problems in Drozd and Janousek makes me reluctant to regard this short obiter comment as definitive for all circumstances.

[30]I start with the position generally agreed between the parties that the continued enforcement of a sentence following a trial which was in substance not a trial before a competent court or following one which involved a flagrant denial of justice would be unlawful, and that the prisoner's consent to transfer could not make it otherwise. In principle, for the reasons which I now give, I accept it.

[31]The UK would be responsible for the continued detention of a transferred prisoner but not for his trial. That continued detention is lawful only because of the action taken by the Minister under the RPA, to give effect to the PTA. The PTA by its own terms applies only where there has been a conviction and sentence by a criminal court. The PTA itself envisages that it is only the actions of a court which can lead to a sentence that can continue to be enforced on transfer. Article 5(1) (a) ECHR also only permits detention where there has been a conviction by a competent court. Neither the PTA nor the language of the ECHR is confined to the formal constitution or status of the body holding the trial or the formal status in the transferring country of its acts. The characteristics of the trial itself may be such that the action of a body, regarded as a court in the transferring country, in convicting the offender cannot be regarded as conviction by a competent court exercising criminal jurisdiction.

[32]I am satisfied that there comes a point at which the UK authorities must decline to exercise the power to make a request under the PTA for the transfer of someone who on the face of it falls within its terms, because in reality the sentence is not the sentence of a competent court. The UK could not continue to enforce it in the UK nor, conformably with the ECHR, lawfully hold the individual in detention. It could not dignify the foreign process as a conviction or consequential sentence by a competent court. An example would be a sentence following a show trial, albeit for what on its face could be a conventional criminal offence, but with the result pre-determined by political intervention. It is necessary for the UK as receiving state to ask before transfer whether there was, in substance as well as in form, a conviction before a competent criminal court for the transfer to continued enforcement of sentence to be lawful. I would expect these instances to be obvious and usually to be known to the diplomatic representatives of the UK at the time of trial.

[33]What the ECtHR however envisaged by a refusal of co-operation was that the receiving state should refuse to accept the transfer. It supposed that it was the transferring state which made the request. The converse situation arises here. Although this refusal of co-operation would mean that the more unfair the trial, the more likely it would be that co-operation by the receiving state had to be refused, and the prisoner would have to remain where he was, that is the effect of the provisions of the PTA, RPA and of the ECHR. The prisoner in those circumstances could only invoke the diplomatic assistance of the UK, or other public or private pressure, to achieve his transfer and release. This is comparable to those circumstances in which an individual cannot be transferred because there is no equivalent offence or where the punishment could not be carried out in the UK.

[34]Mr Fitzgerald and Miss Ivimy are entirely right to point out that there are certain aspects of a foreign criminal trial and penal system which would prevent a transfer, even though there might have been a very obvious abuse of human rights. A prisoner serving a sentence for an offence which does not exist in UK law, such as adultery, cannot be transferred; he can only be transferred to serve a sentence for an offence corresponding to an offence under UK law. This means that there are some offences committed abroad for which someone may be serving a sentence, and the PTA with Thailand illustrates it, where no transfer is possible under the PTA. These may involve offences for conduct which the UK would not regard as criminal at all. A person who is detained as a result of some administrative measure, rather than after a trial by a competent court, would also fall outside the scope of the PTA.

[35]The point at which a transfer request must be refused by the UK arises where the conviction cannot properly be said to follow a trial by a competent court in any real sense. In essence, and given the way in which the phrase a “flagrant denial of justice” has been analysed in R(Ullah) v Special Adjudicator

[2004] 2 AC 323

, 337, and EM (Lebanon) v SSHD

[2008] 3 WLR 798

, as being a “complete denial or nullification of the Convention right”, there may be no difference between the effect of the application of that phrase and the effect of the way in which "court" and "offender" in the PTA and RPA would be applied anyway.

[36]As both parties agreed, this challenge does not concern Article 6 directly but only the way in which a breach of Article 6 so severe as to be the complete denial of the Convention right, itself leads to a further violation of the Article 5 rights. Although the context is different from deportation, the breach of fundamental procedural rights must lead to a breach of the substantive rights in Article 5. However, I do not think that this consequential breach of Article 5 must in its turn be an independently flagrant breach. This would be so when examining the importance of a breach of Article 6 in a deportation case; see paragraphs 139 and 141 of RB (Algeria) v SSHD

[2009] UKHL 10

;

[2009] 2 WLR 512

, per Lord Phillips. But this case concerns the domestic lawfulness of detention rather than indirect responsibility for foreign detention. In those circumstances, once the actions of the foreign court are so flawed that there is no conviction of an offender for a crime, his detention in the UK would be unlawful for any length of time. The transfer of such a person must not be requested, because the UK could not in all conscience observe its obligations under the PTA to enforce the sentence.

[37]I now turn to the position in this case where Mr Willcox has in fact achieved a transfer which on his own arguments should have been refused. The fact that Mr Willcox asked for transfer and consented to it on terms which meant that he accepted that he could not challenge his conviction in the UK, (which in substance is what he is doing in these proceedings, and which would mean, if he is right, that he should not have been transferred at all,) does not prevent him asserting the unlawfulness of his detention in the UK on the basis that there was no trial by a competent court. This has nothing to do with Mr Willcox's claim that his consent was not freely given because of the conditions in which he was held. The lawfulness of his detention in the UK depends upon the existence of a conviction abroad by a competent court. It is for the UK Courts to decide whether the actions of the UK authorities in continuing to enforce the sentence are lawful. Consent to transfer cannot turn a trial which was not one by a competent court into one which was. Consent merely places the prisoner within the jurisdiction of the UK Court. The risk of undermining the PTA is reduced by the very high threshold which would have to be met either under the terms of the PTA/RPA or under the ECHR before release could be sought in the UK, and the probability that a trial which met it would have already been noticed while it was occurring and would not lead to an effective request for a transfer. Indeed, the court should be astute to avoid lowering the threshold. It would only apply in those cases where the reaction of the court is that a particular prisoner simply cannot be detained in the UK to continue a sentence following such a trial.

[38]The effect of consent to transfer cannot be that any proceedings to challenge the lawfulness of detention based on the trial abroad are an abuse of process or give rise to issues of the discretionary refusal of relief. Both of those possibilities would be quite inappropriate where detention is unlawful. If Mr Willcox is right that his trial was a flagrant denial of justice, he should not have been transferred under the PTA at all and should have been left in prison in Thailand. There is no provision for his retrial in the UK. Mr Willcox may have benefited from what he must assert to be the want of alertness of the UK authorities, but if so others must not. His actions, if he is right, in highlighting the limitations on the power of transfer under the PTA, and so on his evidence disadvantaging others in life threatening ways to achieve his own release, cannot subvert the law. It can encourage however its careful application.

Was there a conviction by a criminal court or a flagrant denial of justice?

[39]The sole reason why Mr Fitzgerald submitted that the conviction of Mr Willcox in Thailand was not a conviction by a competent court and a flagrant denial of justice was the operation of the irrrebuttable presumption that he possessed the heroin for the purpose of disposal or sale. He had not been allowed to adduce evidence that he was an addict who used the amount he had over a period of some ten days to two weeks. That had not even been considered as a mitigating factor which could reduce the very heavy sentence. The quantities involved were not such that an argument that the drugs were for personal use was obviously wrong. I accept that in the UK the amounts by themselves would not have made such an argument untenable and that, on the evidence which Mr Willcox wished to present, there was a reasonably arguable case that they were for personal use only.

[40]Mr Fitzgerald submitted that whether the possession of drugs was for personal use only or was for supply to another was an issue of critical importance in judging the culpability of someone who had possession of them, and was a commonplace distinction in any jurisdiction. The distinction is acknowledged in Thai criminal law. But this critical ingredient of the offence in Thai law was the subject of an irrebuttable presumption. That was grossly unfair, and flouted the presumption of innocence. A rebuttable presumption would not have been objectionable. A reduction of penalty after a post conviction fact finding process might well have sufficed for a fair trial or at least one which was not a flagrant denial of justice. But the effect of the irrebuttable presumption was to create a very long sentence for an offence in which a pivotal ingredient was incapable of dispute or defence or providing mitigation. I am prepared to assume, although the position is not finally established, that the general statutory provisions for mitigation in Thai criminal law do not permit this point to be raised by way of mitigation since that would run counter to the purpose of the presumption and the associated step increases in penalty.

[41]Mr Fitzgerald referred to a number of authorities, which encapsulate his submissions. Chuan v Public Prosecutor

[1981] AC 648

PC considered the constitutionality of a statutory but rebuttable presumption in the Singapore Misuse of Drugs Act that possession of drugs above a certain quantity was for the purpose of supply. It was held not to conflict with any fundamental rule of justice, because it was rebuttable. The threshold quantity for the operation of the presumption was also well above the average daily dose of an addict. The implication of this, as I read p671, was that an irrebuttable presumption would conflict with a fundamental rule of justice because it would mean that someone could be convicted either of an offence which had not been proved or on the basis of an otherwise legitimate presumption against which he had no chance to defend himself.

[42]ECtHR jurisprudence of less certain quality was also prayed in aid. Salabiaku v France

1988 13 EHRR 379

concerned the customs offence of smuggling prohibited goods into France. The person who was in possession of the goods brought into France without declaring them was “presumed to be legally liable unless he… could prove a specific event of force majeure exculpating him.” Salabiaku claimed that this was an almost irrebuttable presumption of guilt. In fact, the court had to be satisfied that he was indeed in possession of the goods, and he could show that if so, it was only by force majeure. Although the ECHR did not prohibit presumptions in principle, the Court held that in practice, if the presumptions were permissible without limit through the operation of Article 6, national legislatures would be free to strip the trial court of any power to assess the evidence which founded the prosecution, depriving the presumption of innocence of effect, and the trial court of the functions of a court. Article 6, in protecting the presumption of innocence was enshrining a fundamental principle of the rule of law. Hence concluded the Court:

“Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the right of the defence. The Court proposes to consider whether such limits were exceeded to the detriment of Mr. Salabiaku.”

[43]This decision was dispatched with vigour by Lord Hoffmann and some others in R v G(Appellant)

[2008] UKHL 37

. The offence of rape of a child under 13 did not permit an accused to defend himself on the grounds that he did not know or had no reason to suspect that the child was under 13. It was argued that this breached Article 6 and the presumption of innocence. As Lord Hoffmann pointed out in paragraph 4, Article 6 did not guarantee that the criminal law would have any particular content, or what the mental or other elements of an offence should be. He cited with approval what Dyson LJ had said in R v Gemmell [202] EWCA Crim 1992;

[2003] 1 Cr App R 343

, 356 para 33:

“The position is quite clear. So far as Article 6 is concerned, the fairness of the provisions of the substantive law of the Contracting State is not a matter for investigation. The content and interpretation of domestic substantive law is not engaged by Article 6.”

He then continued:

“The only authority which is said to cast any doubt upon this proposition is the decision of the Strasbourg court in Salabiaku v France (1988) 13 EHRR 379 and in particular a statement in paragraph 28 (at p.388) that “presumptions of fact or of law” in criminal proceedings should be confined “within reasonable limits”

. No one has yet discovered what this paragraph means but your Lordships were referred to a wealth of academic learning which tries to solve the riddle. My Lords, I think that judges and academic writers have picked over the carcass of this unfortunate case so many times in attempts to find some intelligible meat on its bones that the time has come to call a halt. The Strasbourg court, uninhibited by a doctrine of precedent or the need to find a ratio decidendi, seems to have ignored it. It is not mentioned in Z v United Kingdom

(2001) 34 EHRR 97

. I would recommend your Lordships to do likewise. For my part, I would simply endorse the remarks of Dyson LJ in R v Gemmell

[2003] 1 Cr App R 343

, 356.”

[44]Lord Hope took a kindlier view of Salabiaku: it should be understood rather than ignored. Article 6 did not restrict, save for the protection of other Convention rights, what should or should not be the subject of criminal offence, nor what the elements of an offence should be. But it did encompass the procedures for their proof. He endorsed what the Court of Appeal had said in R v G about what Salabiaku meant:

“An absolute offence may subject a defendant to conviction in circumstances where he has done nothing blameworthy. Prosecution for such an offence and the imposition of sanctions under it may well infringe articles of the Convention other than article 6. The legislation will not, however, render the trial under which it is enforced unfair, let alone infringe the presumption of innocence under article 6(2).”

[45]It is not, in my view, necessary to come down on one side or the other of that debate, any more than did the rest of their Lordships. The point being made by the ECtHR, so far as material for this case, was that the way in which the substantive elements of an offence have to be proved or are presumed may give rise to an issue under Article 6 , properly confined to its procedural role, as to whether the presumption of innocence was infringed and whether the body carrying on the trial had been so deprived of the role of evaluating evidence, which is fundamentally part of the role of a court, that the conviction was not the result of a trial by a competent court. An irrebuttable presumption may affect procedural rights. Another way of putting the same point is to say that such a presumption is incompatible with the presumption of innocence in

Article 6(2) ECHR

, and may deprive the trial court of one of the important facets of a trial court’s role, namely reaching conclusions on factual issues. If Salabiaku is read as expressing that point, it is not truly trespassing upon the substantive criminal law, in terms of offences or ingredients of offences, but is asserting procedural rights, which are the true focus of Article 6, in the way in which the various ingredients are proved. The Thai Supreme Court, for example, accepted in principle that an irrebuttable presumption called for examination against the presumption of innocence.

[46]I agree with Mr Fitzgerald that the question of intent in the possession of drugs is an important ingredient, not just from the stigma but more concretely because of the effect which that intent rightly has on the level of sentencing, and does in the Thai Narcotics Act. I accept the way in which the Privy Council in Chuan contrasted the effect of a rebuttable presumption with that of an irrebuttable one. Where an irrebuttable presumption relates to an important ingredient of an offence, which has a marked effect on the penalty, the trial, at least by most standards, is fundamentally unjust, especially where evidence cannot even be admitted to play a part in mitigating penalty. I find the simple words of Chuan compelling.

[47]There is a conflict with the presumption of innocence. The presumption could be defended on the basis that its effect is simply to treat the quantity of drugs possessed as creating marked increases in sentence, the justification for which need not be expressed as an irrebuttable presumption at all. The Thai Supreme Court concluded that the irrebuttable presumption was compatible with the presumption of innocence for that reason: its practical effect was to provide step increases in penalty for the possession of defined quantities of drugs. And in a very real sense that is the effect. I do not think however that the reasoning of the Thai Supreme Court would be persuasive in a UK Court on similar legislation. Intent to supply is included as an ingredient of the offence. Thailand still regards the offence as one of possession with intent, and that is the basis on which the transfer was made, and that set the maximum sentence, life, to which Mr Willcox could be subject in the UK. The amount at issue does not preclude a triable issue on intent to supply. The possibility was raised by the court in argument that transfer should have been on the basis that the true equivalent on the facts here was simple possession. But Miss Ivimy confirmed that transfer was understood by both Governments and by Mr Willcox to be on the basis that the equivalent offence was possession with intent to supply.

[48]A rebuttable presumption by contrast would plainly not conflict with the ECHR. There may also be some irrebuttable presumptions which, judging by Salabiaku, would not infringe Article 6(2). It is very difficult to tell from Salabiaku, and the later decision in Hoang v France

1992 16 EHRR 53

precisely what it was that the French Courts did and precisely what it was that made the application of the presumption permissible or not. But this is a very important irrebuttable presumption on a commonplace issue in drugs cases which leads to markedly increased sentences. If the provision at issue were part of a UK Misuse of Drugs Act, I would expect it to be held incompatible with

Article 6(2) ECHR

. I would expect the ECtHR to hold that the trial was in breach of Article 6(2). Although the defendant would be able to contest both possession of drugs and the quantity, he could not contest the important inference which then followed. I would not expect the UK Courts however to hold that the legislation was incompatible with Article 6(1) on the basis that it was inevitable that a trial for such an offence meant that the court, which for all other cases satisfied Article 6 (1), could not be independent or impartial for these cases.

[49]I now answer the question of whether the sentence was passed as the result of an order by a criminal court. In form and substance the answer is obvious. There was a trial by a Court in all respects, in public, before two independent judges. The defendant was present and legally represented. Although he pleaded guilty to these offences, the court acquitted him of the very grave offences of which his co-defendant was convicted. The Court also heard evidence proving his possession of the drugs and of the quantities, even though that was not contested. It went through the domestic sentencing procedures and allowed a significant discount for the plea; and there was no mitigation other than that which it regarded, I infer, as irrelevant. It provided a reasoned judgment on guilt and sentence. The irrebuttable presumption did not have the effect of turning the trial into a trial by a body which was not a court in substance, nor the conviction into a nullity.

[50]Was there a flagrant denial of justice in the way in which that phrase has been explained by the House of Lords? In my view, although Article 6 would have been breached, because the presumption of innocence was significantly diminished in this case, the proceedings cannot on this account be described as a complete denial or nullification of the right to a fair trial. The important ingredients of possession and quantity were admitted, and proven. The compatibility of the irrebuttable presumption with the presumption of innocence has been considered and ruled on by the Thai Supreme Court. I understand its reasoning that the court is in effect sentencing for quantity possessed. Viewed in the Thai context, it is easier to see why the irrebuttable nature of the presumption, draconian though it is, might be thought appropriate, and to see it as bearing on the appropriateness of the way in which substantive law was framed, rather than on procedural protection for the presumption of innocence. That is a judgment for the foreign country. And Article 6 is not directed to the substantive law. Thailand faces a scourge from drugs; addicts abound; possessing more than they need for their immediate needs that day means that they could supply some to friends or acquaintances whatever the limits of their provable intent current when arrested. The more they possess, the greater the risk. The ECtHR, and the UK courts, and especially in this context, should be slow to pass judgment on the way in which non state parties grapple with major problems in their countries, conscious that state parties choose to resolve their perhaps rather lesser problems differently.

[51]An overall view is required of the trial. I conclude that it plainly was a trial, fair within the limits created by the local narcotics legislation in relation to one, albeit important, ingredient. Those limits dent the right but do not completely nullify or deny it, nor in my view do they come close to that. It is accepted that the test is not readily satisfied. This is nowhere near the litany of grave deficiencies identified in DD and AS v SSHD SC/42 and 50/2005, 27 April 2007, the SIAC case concerning deportation to Libya, or in Bajinja v Government of Rwanda

[2009] EWHC 770

Admin.

[52]This aspect of the Article 5 case fails.

Is the detention arbitrary?

[53]Mr Fitzgerald contended that, if Mr Willcox had pleaded not guilty, he would have received a life sentence. On transfer, his case would then have been referred to the High Court under s 273 of the Criminal Justice Act 2003 for the making of an order setting the minimum term to be served before release on licence, under s 82A of the Powers of Criminal Courts (Sentencing) Act 2000. In what Mr Fitzgerald contended was the more serious case of ReAdelo Soyege

[2005] EWHC 2648 (QB)

, a woman who tried to smuggle over 4kgs of pure heroin out of Thailand and was sentenced there to life imprisonment, was ordered to serve a minimum of 4 years, half the determinate sentence of 8 years which would have been imposed, less time on remand. Had Mr Willcox pleaded not guilty, he would now have the prospect of immediate release. His detention was thus arbitrary and fell foul of

Article 5 ECHR

[54]There is nothing in this argument. Had he been sentenced to life, and not death, after a plea of not guilty, he would have had to serve a minimum of 8 years in Thailand before his transfer was considered, rather than the 4 which he actually served. After release in the UK, he would remain on licence. The life sentence is intended to have a continuing impact after release and to pose risks of return to custody which would not otherwise exist. It should be regarded as the more severe sentence in principle. The difference in outcomes is not the result of arbitrary action by the Thai Court but of the application of Thai law to his plea, then interacting with UK sentencing practice on transfer.

[55]I agree with Miss Ivimy that it cannot be said that it is arbitrary for the UK Courts to enforce that sentence after transfer. Once it is established that the conviction and sentence are those of a Court, as it is, its sentence is not arbitrary, and enforcing in the UK the sentence of the relevant competent court is not arbitrary either. Mr Fitzgerald’s argument is in reality an argument for the general conversion of sentences based on an inapt comparison with the different way in which life sentence minimum term and release provisions apply. The Thai Government, although it could have been surprised at the comparative leniency with which Soyege was treated in the UK, accepted in the PTA that the release provisions are for the receiving country’s law. This other aspect of the Article 5 case fails also.

Is the sentence so disproportionate as to amount to a breach of Article 3?

[56]Mr Fitzgerald contends that this sentence was so grossly disproportionate that

Article 3 ECHR

was breached. He points out and I agree that if Mr Willcox had been sentenced in the UK for simple possession of such a quantity of heroin and ecstasy, the term could not have exceeded the maximum of seven years and would have been substantially less than that. Had Mr Willcox been sentenced in the UK for possession of such a quantity of drugs with intent to supply, which does carry a maximum of life, the sentence would not have exceeded around six years on the basis of such decisions as R v Dhajit

[1999] 2 Cr App R (S) 142

, and R v Twisse

[2001] 1Cr App R (S) 9

[57]Mr Fitzgerald also accepted that the existence of a difference between sentencing in Thailand and the UK which could be stigmatised as disproportionate is not sufficient to show a breach of Article 3. For a sentence to be unlawful within Article 3 because of its length, he had to show that it was grossly disproportionate before it could amount to cruel, inhuman or degrading treatment. But he said the Thai sentence here is four to five times as great as that which would be imposed by the UK, and that disproportion is so gross as to amount to a breach of Article 3.

[58]The authorities upon which Mr Fitzgerald relied to show that gross disproportion could breach Article 3 included Reyes v The Queen (Belize)

[2002] UKPC 11

. A mandatory death penalty for murder by shooting, which permitted no account to be taken of either personal circumstances or the particular circumstance of the offence, was held to be arbitrary, disproportionate and to breach the Belize equivalent of

Article 3 ECHR

. Reyes did not purport to deal with mandatory prison sentences for other offences, but the reasoning of the Privy Council drew upon the decision in R v Offen

[2001] 1WLR 253

which left open the prospect that a mandatory life sentence for a second serious offence, which was not justifiable on the facts and circumstances of the offences and offender, could breach Article 3. The Privy Council also referred to the case of R v Edward Dewey Smith

[1987] 1 SCR 1045

which concerned the compatibility of a mandatory minimum 7 year sentence for importing any amount of any narcotic into Canada with the section of the Canadian Charter forbidding cruel and unusual punishment. The Supreme Court held that this mandatory minimum was incompatible with the prohibition on cruel and unusual punishment because it could lead to grossly disproportionate sentences. The fact, which I regard as undeniable, that the length of the mandatory sentence in practice is mitigated by Royal amnesties as well as UK release provisions, did not remove the gross disproportion because that mitigation by amnesty was not a judicial decision, just as the availability of an Advisory Council, which was not a court but which advised the governor –general on the exercise of the prerogative of mercy, did not prevent the mandatory death sentence breaching the equivalent of

Article 3 ECHR

in Reyes. The description of the sentence as grossly disproportionate, and so breaching the equivalents of Article 3 in these cases, drew more on the arbitrary effect of mandatory sentences applying without differentiation to what could be widely differing offence and offender characteristics, than on the length or type of the sentence itself.

[59]Miss Ivimy rightly pointed out that there is no ECtHR decision that a determinate sentence imposed by a contracting or non-contracting state breached Article 3 simply because it was grossly disproportionate by virtue of its length. However, it was not in dispute that a sentence imposed by a contracting state could amount to a breach of Article 3, for example where a life sentence was imposed on a juvenile, or a life sentence from which there was no chance of release before death whatever the circumstances. That is not to say that they necessarily would do in those circumstances; those are simply illustrations of the possibilities. The decision in R (Wellington) v SSHD

[2008] UKHL 72

[2009] 2 WLR 48

, which permitted extradition to the USA on charges which, on conviction, would lead to a mandatory whole life term, without parole or other early release except by act of the state governor, illustrates the scope for the argument. Gross disproportion was caused here, submitted Mr Fitzgerald, by the length of the sentence resulting from the irrebuttable presumption, the mandatory life sentence for possession of a modest amount of heroin and ecstasy, and the irrelevance of mitigation based on a lack of intent to supply, whether the offence was properly seen as simple possession or as a minor example of possession with intent to supply.

[60]The circumstances will be rare, in my view, in which the length of a transferred sentence by itself could give rise to a problem of such gross disproportion as to amount to a breach of Article 3, because the UK maximum for the equivalent offence applies to limit the extent of the term to be served whatever the sentence imposed in the transferring country. It does not seem to me of any value to consider whether a determinate sentence is or may be so grossly disproportionate as to breach Article 3 simply by virtue of its length. That is because there will always be other factors present to affect the judgment. These will include the nature of the offence, the rationale for the sentencing framework, as well as the specific way in which the offence was committed, and the personal circumstances of the offender.

[61]This case illustrates that point. The way in which Thai law compelled the court to deal with certain factual issues, relevant to how the equivalent offence is selected, may give rise to an issue about true equivalence or the relevant maximum, which can lead to an argument about gross disproportion. An issue may also arise, and this case again illustrates it, where the prisoner has been given a very long sentence abroad, perhaps because the sentence is mandatory, for a minor example of an offence which has a very wide range of offending characteristics and so carries a very high maximum in the UK; the application of the UK maximum may not then eliminate gross disproportion in relation to the particular facts proved. Robbery, causing grievous bodily harm with intent, and drug dealing could all be in that category.

[62]Miss Ivimy’s analysis was that the treatment to which the UK courts were subjecting Mr Willcox, the treatment relevant for Article 3 here, was not the imposition of a disproportionate even grossly disproportionate sentence but the agreement to the transfer of Mr Willcox, at his own request, from Thailand to the UK to serve his sentence, under a PTA which did not permit conversion of sentence but required its continued enforcement. In R v SSHD ex p Read

[1989] 1 AC 1014

the issue was whether the SSHD, on the transfer of a prisoner from Spain under similar provisions to those with which this case is concerned, had power to reduce the sentence to a level below the UK maximum. Lord Bridge, in rejecting such a power, commented at p1048D-E, that it was important to bear in mind, when considering the provisions of a PTA, that the primary policy objective was 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 would almost always mitigate the rigour of the punishment inflicted.

[63]Miss Ivimy, in this context rather than in the earlier Article 5 or 6 context, highlights the problems which would be created by Mr Fitzgerald’s argument that the sentence for this offence was so grossly disproportionate as to breach Article 3, especially if it was properly to be seen as a conviction for simple possession. If the disproportion were sufficiently gross, Article 3 would be breached on return by its continued enforcement. No transfer could therefore occur pursuant to the PTA. The greater the disproportion, the greater the prospect that it would have to be served in full in the foreign country. The humane objectives to which Lord Bridge referred would be nullified.

[64]This case highlighted the reality of that concern. Mr Willcox provided evidence which, if accepted though the point was not really debated, showed his conditions of imprisonment to be very harsh and degrading. He would certainly contend, and he might be right, that they would breach

Article 3 ECHR

, were that applicable. Success for Mr Willcox could prove very damaging for the interests of other prisoners languishing in the same sort of circumstances he described, and not just in Thailand. He was not convicted of an unusual offence in Thailand. Mr Wilkinson, a Senior Manager in the Ministry of Justice, gave evidence that 33 prisoners had been transferred from Thailand since 1991 under the PTA, most serving sentences for drug offences, ranging up to 50 years. It is not to be supposed that Thailand would be indifferent to the UK releasing someone from detention after transfer to the UK because the sentence to be served was thought to be grossly disproportionate. Thailand did not agree and would not have agreed to a UK court substituting its own sentence for that of the Thai court. Thailand refused to conclude a bilateral agreement with the Netherlands until it abandoned its preference for “conversion of sentence”. The good faith of the UK could be put in question in my judgment in the light of the PTA and of what the UK government said at the time of transfer; and the transfer of other prisoners could thereby be inhibited or prevented.

[65]There were also bilateral PTAs with 22 other countries, which provided for “continued enforcement” of the sentence imposed by the court of the transferring country. The UK did not operate “conversion of sentence” under its two multilateral agreements, with Council of Europe countries and with Commonwealth countries. Their attitude towards transfer could be affected by how the UK deals with transferred prisoners by reference to the length of the sentence within the maximum.

[66]In my judgment, if Mr Fitzgerald were right that a sentence could be so grossly disproportionate as to make its continued enforcement in the UK a breach of Article 3 by the UK, the UK would be bound to refuse to accept the transfer on that basis. In order to avoid undermining the PTA by requesting a transfer on the basis that it would continue to enforce the sentence, only to find after transfer that it could not do so, the UK would have to conduct an analysis of the proportionality of the sentence before transfer. If it concluded that the sentence could not continue to be enforced, it would have to refuse the transfer request. This would mean that fewer prisoners would be transferred, however much they protested that they consented to the transfer on the terms agreed in the PTA. It might well lead to defensive judgments by the UK about who could be transferred, in the interests of upholding the agreed application of the PTA. It is also unlikely that prisoners would say anything which might inhibit their transfer until after return anyway. But keeping their powder dry until return would only delay the problem which this would bring for the PTA, undermining the good faith necessary for its effective and beneficial operation. Mr Willcox, if his arguments are right, would have benefited from a want of legal perspicuity which his arguments would require to be applied to others in the future. There is therefore a considerable dilemma created by the very principle of Mr Fitzgerald's arguments: would the prospect of a breach of Article 3 preclude transfer? Could the beneficial operation of the PTA permit a breach of Article 3 in the UK?

[67]I reject Mr Fitzgerald’s argument that the phrase “as far as possible” in Article 6(3) of the PTA can be construed as meaning “as far as possible in compliance with the ECHR”. He suggested that gross disproportion in sentence which breached Article 3 is a basis agreed within the PTA for a review of sentence by the receiving state, and therefore the concerns to which I have adverted were solved within the terms of the PTA, and no conflict arose. The provision reads “Such enforcement [of detention] shall as far as possible correspond with the sentence imposed in the transferring state.” The PTA as a whole is designed, on transfer, to enforce the sentence of the transferring court and not to go through trial and sentence again, this time adopting the receiving state’s values and judgments. The duration of sentence, so long as it does not exceed the UK maximum, is fixed by the transferring state. If reduced, it is only reduced to that maximum; the prisoner is not re-sentenced. The continued enforcement of detention, which Article 6(1) requires to be governed by the laws and procedures of the receiving state, is continued enforcement of the sentence imposed in the transferring state, subject only to the maximum which could be imposed in the receiving state, and is not continued enforcement of a sentence converted in the receiving state. It simply cannot be an enforcement of that fixed sentence to change it to something else by altering its terms. Article 6(1) governs conditions, which could cover type of prison, discipline, courses, labour, and so on, and reduction of term, which covers parole, remission and so on. That is the continued enforcement of the fixed detention to which Article 6(3) is directed. That is what, so far as possible, must correspond to the sentence imposed in the transferring state. A requirement could have been imposed in the transferring state which would not be imposed on that prisoner in the UK, but which UK law permits, and which should therefore be applied to him. It is only in that context, but that is the context relied on by Mr Fitzgerald, that the law of the UK, as it might be read compatibly with the ECHR, is relevant. But that has nothing to do with gross disproportion of sentence within the permitted maximum.

[68]The only purpose of the PTA is to enable the prisoner to serve the foreign term at home. The PTA is designed not to create an appeal against conviction or sentence after transfer, with UK/ ECHR standards applying. Transfer does not occur while appeals may be pending in the transferring state. The PTA and RPA together have set the limits for transfer, by way of the need for equivalent offences, the need for the informed consent of the transferred person, the application of UK maxima, and it is then for the UK to determine the nature of the custody, and the application of remission or early release. For the UK to review sentence after transfer would be to do that which the PTA rejects. To interpret the PTA as containing such a power would be to misinterpret its terms.

[69]The solution to this dilemma cannot readily be found either in the short unreasoned obiter sentence of the ECtHR in Drozd and Janousek, requiring the receiving state not to co-operate with transfers. It did not have to face the problem arising here. It did not have to deal with the problem that, on the basis of his arguments, this claimant should have remained in custody and in very much worse conditions than those from which he has benefited on transfer. Nor did it have to deal with the problem that the consequence of his success in persuading the UK Government to co-operate with Thailand, to his own advantage and in a way which he now says it should not have done, is that others may well be left to languish in Thailand and elsewhere, after trials and for terms and in conditions which could infringe the very principles his arguments would uphold for him. Mr Willcox’s argument if correct necessitates acceptance of the proposition that he should still be in prison in Thailand and, now that the UK Government is alerted to the gross violations of human rights his case involved, others in the like position should stay there so that their human rights are not infringed in the UK. The application of what the ECtHR said in these circumstances could thus be to achieve the very opposite of what it thought would be achieved in Drozd and Janousek. It did not have to deal with the way in which its obiter comment on the obligation to refuse co-operation could require the UK to undermine the intent of its international agreements as the alternative, for what probable short term difference it would make, until the transferring states refused their continued co-operation under the PTA, as they are entitled to do. The ECtHR cannot have envisaged that the obligation not to co-operate should mean that transfers should be agreed on one basis and then given effect on another, in a way which would undermine the good faith of the requesting state. These very real problems were simply not before it and were therefore understandably not addressed.

[70]In my judgment, the answer to the dilemma is that it is a false dilemma. I accept Miss Ivimy's analysis that the treatment which the UK is imposing on Mr Willcox for the purposes of Article 3 is transfer to which Mr Willcox agreed for the purposes of the continued enforcement in the UK of the Thai sentence pursuant to the PTA, and not the imposition of the sentence or punishment in the first place. The allegedly cruel, inhuman or degrading treatment, which gives rise to the alleged breach of Article 3, is the acting on the request for a transfer, with the necessary consequence that the sentence would continue to be enforced. It is irrelevant to ask whether this sentence would be so grossly disproportionate as to breach Article 3 were it imposed by the UK. Mr Willcox had a choice as to where he served his sentence, Thailand or the UK. He chose to serve that sentence in the UK for the benefits which he knew that would bring him, and on that basis agreed to transfer. He knew that those benefits did not include a review of sentence. The concept of “gross disproportion" in sentence is not a substitute for the language of Article 3 but an illustration of what it could cover; the underlying treatment still has to be cruel, inhuman or degrading. I cannot accept that the operation of this humane provision, which the claimant has benefited from through his own fully informed choice, can be described as, or as capable of leading to, treatment which is cruel, inhuman or degrading. The continued enforcement of the sentence on transfer simply does not breach Article 3, however gross the disproportion in the sentence to UK eyes, or however arbitrary the sentence might have been.

[71]I have no difficulty accepting that a sentence may be of such a length, or of such an arbitrary nature, that it would breach Article 3 on the part of the sentencing state if it were a party to the ECHR. I am prepared to assume that, were the UK to impose a mandatory life sentence for possession of this quantity of drugs and to do so on the basis of an irrebuttable intent to supply, it would breach Article 3. But the continued enforcement of such a sentence on transfer pursuant to the PTA does not constitute treatment which breaches Article 3; it is the fact of consensual transfer for humane purposes which means that it cannot constitute cruel, inhuman or degrading treatment. It is not necessary therefore for the UK to examine before transfer whether the sentence which the PTA requires it to continue to enforce is so severely disproportionate that it would breach Article 3 if imposed in the UK. The fact that the sentence was imposed after a trial which would have breached Article 6, because of the effect of the irrebuttable presumption, does not affect this conclusion. The sentence was the result of a conviction before a competent court. Mr Willcox asked to be transferred to serve that very sentence in the UK and did so on the basis that he would not be able to contest the conviction or sentence by reference to UK laws.

[72]This analysis goes beyond where Miss Ivimy was prepared to go; she accepted that an issue could arise in connection with Article 3 on transfer and instanced a life sentence on a juvenile and a life sentence without any possibility of release on an adult. She asserted that there could be a flagrant breach of ECHR rights which would mean that continued enforcement of sentence would infringe Article 3. I do not accept that this is right under this PTA, and it appears inconsistent with her contention that the focus of inquiry should be on the prisoner's treatment by the UK, which was transfer for continued enforcement of sentence. The release provisions are not those of the transferring state but those of the receiving state and so her instances of possible breach would be solved by the operation of the PTA itself. The maxima are those of the receiving state. It is only a sentence of imprisonment which can be enforced on transfer. There is no concept yet to be articulated of a flagrant breach of Article 3, save to the extent that a degree of relativism may be allowed in the assessment of what standards breach it. A flagrant breach of Article 6 would prevent transfer anyway.

[73]I reject Mr Fitzgerald's submission that Mr Willcox's consent should be disregarded because, though informed, it was not freely given because of the terrible circumstances in which he was incarcerated. On the basis of what Mr Willcox says, and without examining what may be a different story from the Thai government, he may have had little choice but to agree if he were to avoid those conditions. But it was still a consent, without which he would not have been transferred, knowing of the limitations under which he would then serve the rest of his sentence. It was not one given under duress aimed at achieving his agreement. For prisoners abroad seeking transfer, there always will be some circumstances of hardship which affect their consent; that is why they seek transfer. The alternative was for him to refuse transfer and seek the diplomatic intervention of the Crown, as he says in law was all that was open to him. It may not be much of a choice, but it was a real one. He still gained from making the choice which he did exactly what he wanted from making it. He was deprived of nothing that he did not want to lose. I do not think that the fact and effect of his consent can just be put to one side on the basis of his evidence about prison conditions. The mere fact that Article 3 rights are breached in any particular transferring country cannot mean that prisoner transfer is to be refused on the grounds that the prisoner's consent cannot be effectively given. Were this court to hold that his consent was vitiated by prison conditions, it would be true of other UK prisoners in Thailand held in the same conditions, who could hereafter never give their effective consent. This would also discourage agreement to the transfer requests of others who may be very willing to transfer without taking arguments which might be available to them, in order to improve their lot in a variety of ways.

[74]Nothing in the ECtHR jurisprudence requires international agreements, entered into for a beneficial purpose, operating to the benefit of the individual in question, to be undermined in this way, let alone to be characterised as breaches of Article 3. Rather, Drosd and Janousek, and other authorities in other contexts to which Miss Ivimy referred us, show its jurisprudence to support the effective operation of beneficial international accords, as the PTA undoubtedly is.

[75]Even if the continued enforcement of sentence after transfer pursuant to the PTA were capable of breaching Article 3 because of the length of sentence or the circumstances in which it was imposed, I do not regard the sentence here as so grossly disproportionate to the offence or so arbitrary that its continued enforcement by the UK would breach Article 3. Mr Willcox committed these offences in the country in which he lived and knew or ought to have known that a very severe view was taken of drug offences. He chose to commit what he knew were offences; there was no retrospective offence or penalty. By UK sentencing standards, the sentence is harsh but he did not commit the offences in the UK; he committed them in Thailand where there is a serious drugs problem, and where the government and legislature are entitled to take the view that harsh sentences are legitimate and necessary. The inferred intent to supply, from possession of quantities beyond those necessary for the addict's daily dose, is not irrational. Its irrebuttable nature reflects the potential for supply from possession of amounts exceeding that daily dose, whatever the truth of the proclaimed intent. The step increases in sentence reflect the greater potential for supply from possession of increasing quantities of the drugs and the perceived need for increasingly harsh sentences. The mandatory nature of the sentence is mitigated by the sort of individual circumstances to which the Thai Narcotics Act refers. He was sentenced for what Thailand is entitled to regard as a serious offence within its own legal framework for trial and sentencing. The arbitrariness was particularly strong in Reyes because he faced the death penalty which cannot be graded, or later partially remitted.

[76]Whilst the occurrence of Royal amnesties would not save a penalty from arbitrariness under the ECHR when applying Article 3 to a sentence passed in the UK, I find it impossible to judge the gravity of the assertion of arbitrariness within the Thai legal system without recognising what its legislators and judges know, which is that Royal amnesties are regular occurrences which mitigate the harshness of the sentences as passed. The operation of the UK release provisions cannot be ignored in the judgement of gross disproportion either, which mean that he is entitled to release at the half way stage, and that is earlier than would have been the case in Thailand.

[77]I do not find it possible to ask whether the UK itself is breaching Article 3 in enforcing this sentence without allowing for the circumstances and system in the country which passed it. It would be quite wrong to ignore the fact that the sentence was not passed by the UK dealing with a UK drugs problem with the values and standards of the UK. It was passed by another country with its own values, judgments and objectives for dealing with what is recognised internationally as a scourge, and the significance of which to Thailand, Thailand alone is well placed to judge. The judgment as to a disproportion in sentencing so severe as to amount to a breach of Article 3 when enforced in the UK cannot ignore that dimension and proceed as if the offence was committed or sentenced in the UK. Gross disproportion relates to the gravity of the offence and the circumstances of the offender. If disproportion is the key to the analysis it cannot be considered in a vacuum, or as if the whole world shared the same problems to the same extent and shared the same views as to how to tackle them. Still less would it make sense to judge the degree of disproportion by assuming that the sentence was imposed in the UK, when it was not. Disproportion requires account to be taken of the position in the transferring country or it will lead to a false view of disproportion. The problems and outlook of the country where the offence was committed and where sentence was passed are of crucial importance.

[78]I appreciate that the question of whether Article 3 creates absolute standards, or whether actions which would breach Article 3 if done by the UK might not do so if done by another state, is a lively one on which the House of Lords was unable to agree in Wellington, above. The question is always whether the act done by the UK breaches Article 3, rather than whether the act of the foreign state did or would. If the act of the foreign state itself would not breach Article 3, the answer in relation to the UK is of course anyway clear. I take the view that, if the act of the foreign state however did or would breach Article 3 were it a state party to the ECHR, the UK may or may not breach Article 3 in the way its own act relates to it, depending on the nature of and justification for the acts and how the two acts inter-relate. Transferring a prisoner into the UK at his request to serve a term which he would otherwise have to serve abroad, and which would breach Article 3 if imposed here, is not the same nature or quality of act as sentencing someone in that way in the first place nor the same as removing someone to serve a such a sentence abroad. There may be differences depending on what gives rise to the asserted cruelty, inhumanity or degradation. I am prepared again to assume that the UK would breach Article 3 were it to impose the same sentence in the same circumstances. But it would be quite unreal to approach the question of whether continued enforcement on transfer into the UK would breach Article 3 on that basis. That is simply not the context in which the issue arises.

[79]Mr Fitzgerald contended that the right question was whether it would be a breach of Article 3 for such a sentence to be passed by the UK in these circumstances. If that is the right question, I would answer it in the positive. If an absolute approach is called for, as his argument requires, the threshold has to be very high indeed. But to say that the imposition of a sentence does not exceed the maximum for the offence, after a trial which breached Article 6, would not be a sufficient answer. The sentence so far as the present case was concerned was imposed for possession, and it was the fundamentally unfair irrebuttable presumption as to intent to supply which drove the sentence to its very high level. There was no opportunity for any mitigation based on evidence of actual intent. In reality the disproportion of the sentence should be measured against the 7 year maximum for simple possession. A life sentence for simple possession of that quantity of drugs, is grossly disproportionate and is inhuman punishment. So too is a life sentence for possession of that quantity of drugs with the intent to supply founded on an irrebuttable presumption. However, as I have said, if the question is whether the act of the UK in transferring Mr Willcox to the UK at his request for him to serve the rest of his sentence and in continuing then to enforce it is inhuman, which in my view is the right question, the answer is in my view that it is not.

[80]Accordingly, the claim based on Article 3 also fails. I would dismiss this claim. Mr

Justice Davis :

[81]I agree that this claim should be dismissed.

[82]I suspect that to Mr Willcox, and his family and supporters, these proceedings come down to an appeal to the High Court of Justice sitting in London to interfere with a sentence which (by whatever means reached) is unconscionable by the standards of the law of England and Wales; to put right what Mr Fitzgerald QC, on behalf of Mr Willcox, has styled a “monstrous injustice”. But only brief reflection shows that matters cannot be approached so simply.

[83]The only reason why Mr Willcox finds himself in the United Kingdom, able to bring these proceedings, is by operation of the PTA with Thailand which came into force on 6 February 1991. It is to be presumed that, by entering into the PTA, the United Kingdom was desiring to facilitate, in appropriate cases, the repatriation of prisoners from Thailand, a foreign friendly state. As it has been said of the Repatriation of Prisoners Act 1984:- “… the primary policy purpose of the United Kingdom statute … is the obviously humane and desirable 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.” See Read at p.1048 (per Lord Bridge). In the present case Mr Willcox himself consented to transfer to an English prison (as did the Thai Government), to serve the sentence imposed by the Thai court. He asserts that he consented under “duress”, so dreadful, he says, are the conditions in Thai prisons: the reality is that it was a choice which it could only be in his and his family’s interests to make.

[84]It is, to my mind, most disconcerting that these present proceedings, if well-founded, would have three consequences. First, Mr Willcox’s consent to the transfer will (even if not his intention at the time) have been given on a false basis. Second, the Thai Government’s consent to the transfer will have been obtained on a false basis. Third, and reflecting the second point, the United Kingdom will be seen to have acted in a manner contrary to the PTA.

[85]So far as member states within the Council of Europe are concerned, by the 1985 Convention there is, broadly speaking, in repatriation cases a possibility of there being adopted either the “continued enforcement” option as set out in Articles 9(a) and 10 or the “conversion of sentence” option as set out in Articles 9(b) and 11. The United Kingdom has, so far as Europe is concerned, as a matter of policy only opted for the continued enforcement approach; and that is likewise the approach adopted in the PTA with Thailand.

[86]In my view, it is plain on the wording of the PTA that under it the United Kingdom has no power to convert a sentence so as to make it a sentence of the kind the United Kingdom courts might have imposed for the offence (and offender) in question. That entire jurisdiction with regard to sentence, and any procedure for modification of the sentence, remains with the transferring state is made express by Article 5. By Article 6(2) it is further made express that the receiving state shall be “bound by the legal nature and duration of the sentence as determined by the transferring state”. Mr Fitzgerald sought to rely on Article 6(3), and in particular the provision that enforcement shall “so far as possible correspond” with the sentence imposed in the transferring state. Set in context, the words “so far as possible” cannot possibly operate, where the United Kingdom is the receiving state, to allow (asserted) overriding requirements of domestic or European law to trump the express provisions of Articles 5 and 6(2). Indeed to permit that would be tantamount to reading the PTA as potentially a “conversion of sentence” treaty: which self-evidently it is not designed to be.

[87]Moreover, were this not so, the PTA would prospectively very quickly become a dead letter. In other cases (for example, in dealings with the Netherlands) it seems that the Thai authorities have indicated that they will not accept a “conversion of sentence” approach in a treaty. If the arguments on behalf of Mr Willcox are right in this case, then there will realistically be for the future a massive detriment to those prisoners in Thailand likewise hoping to be repatriated to the United Kingdom: for the Thai authorities predictably may refuse to give their consent to transfer. Such a consequence would only operate to “thwart the current trend towards strengthening international co-operation in the administration of justice, a trend which is in principle in the interests of the persons concerned”; cp. Drozd and Janousek at p.793.

[88]These factors, to my mind, tell strongly against Mr Fitzgerald’s arguments. Moreover, the PTA reflects the reality: which is that where a crime is committed in a transferring state then, ordinarily speaking, it is for that state, and its laws, to fix the appropriate sanction for the crime. It is not for this country to dictate to other countries its own sentencing standards. True it is that, on Mr Fitzgerald’s arguments, that scenario only arises in circumstances where Mr Willcox has been repatriated and so, for enforcement purposes at least, is within the jurisdiction of England and Wales: but that is of little consequence given that the transfer was only achieved, with the consent of the Thai Government, on the basis of the PTA.

[89]Against those general observations I turn to the four main grounds advanced by Mr Fitzgerald on behalf of Mr Willcox.

[90]In common with Ouseley J I find elusive in this context the application of the concept that co-operation is to be refused if it emerges that a conviction (and, no doubt, a resulting sentence) is the result of a “flagrant denial of justice”, as it is briefly stated in Drozd and Janousek. Indeed, in a repatriation context, such an approach raises serious practical difficulties. The receiving state can hardly first be expected to trawl through the details of each trial to see if a flagrant injustice has occurred – in fact it may be in no practical position to do so. Nor is the individual prisoner likely to highlight alleged injustices at the stage of proposed repatriation – just because the logic of Mr Fitzgerald’s argument compels a conclusion that the receiving state will be unable to receive, with a view to enforcing sentence, where there has been a flagrant injustice. Thus the prisoner – as in this case – will not be likely to raise such points at that stage. Further, there may be difficulties in identifying by what yardstick a “flagrant denial of justice” is to be assessed by the relevant officials in the receiving state.

[91]Be that as it may, on any view, if this principle is to apply at all in this context then the bar must be set very high for it to be applied, as Miss Ivimy submitted and I agree: cf. RB (Algeria) v Secretary of State for the Home Department. Otherwise the whole desirable purpose of repatriation would be undermined. In the present case, the circumstances in which the conviction, on his plea, of Mr Willcox of possession of drugs with intent to supply was obtained do not, in my view, suffice. I can accept that, by European law standards, an irrebutable (not rebuttable) presumption of intent to distribute may well be objectionable. But the relevant Thai statutory provision has been tested in the Thai constitutional court and has been held constitutional in that court and not incompatible with the presumption of innocence applicable in Thailand. I do not think the United Kingdom courts should be astute to seek to impose and substitute their own views of the matter. Moreover, as the Thai constitutional court also pointed out, the practical reality is that such presumption exists in order to have the practical effect that on conviction the resulting sentence is much increased. That reflects the deterrent approach the Thai legislation had adopted to deal with drug problems in Thailand.

[92]Further, Mr Willcox undoubtedly had in Thailand what can properly be recognised as a proper trial. He was legally represented; evidence was received and evaluated; the judicially constituted court applied the presumption of innocence; and in fact, in a fully reasoned judgment, the court, having received the evidence, found that the prosecution had not proved the far more grave charge with which he was charged and of which his co-defendant was convicted. Mr Willcox thus was convicted on the lesser count, on his plea, and sentenced by way of due process; and the sentence complied with Thai law. I do not think the cited statement in Drozd and Janousek or the application of such principle, if any, as can be extracted from cases such as Salabiaku require the United Kingdom courts to refuse to enforce this conviction and sentence by reason of the irrebuttable presumption as to intent imposed by Thai law.

[93]Mr Fitzgerald second point is to suggest that the sentence is arbitrary and the United Kingdom courts cannot and will not enforce an arbitrary sentence. Mr Fitzgerald submitted, in particular, that had Mr Willcox only been sentenced in Thailand to a life sentence (as he no doubt would have been had he not pleaded guilty) he would on repatriation to the United Kingdom in practice, by reason of the tariff system to be applied under the Criminal Justice Act 2003, serve a lesser custodial term than he will do with regard to the (revised) sentence of 29 years and 3 months.

[94]But with all respect to this argument it has no validity. It has no validity because it seeks to compare apples with pears. In Thailand, a life sentence is - generally speaking and subject to amnesties or pardons – just that. It is only because in English law the tariff system is imposed that the alleged arbitrariness can even begin to result. In any event, it is by no means clear-cut that the Thai authorities would have agreed to transfer Mr Willcox as a life-sentence prisoner; in any case, the evidence showed that Thailand requires such a prisoner to serve at least 8 years in a Thai jail before even being considered for repatriation. The evidence also shows that, in practice, by virtue of the general amnesties or pardons frequently granted in Thailand, a life sentence is often reduced to a determinate sentence.

[95]Mr Fitzgerald’s third ground was to say that a sentence of 33 years and 6 months, reduced under the revised warrant to 29 years and 3 months, was inhumane and disproportionate. It is perhaps, however, important to bear in mind that, under English law, the maximum sentence for such an offence – possession of Class A drugs with intent to supply – itself is life imprisonment. True it is that in a Crown Court in England and Wales on these facts Mr Willcox could not on such a count involving this quantity, have expected, on a plea, and even assuming intent, to receive much more than around 4 or 5 years imprisonment. But as Miss Ivimy pointed out enforcement of a sentence by a contracting state on transfer is not, for Article 3 purposes, to be equated with putative imposition of the sentence by the contracting state: as she put it, the relevant treatment by the United Kingdom authorities for the purposes of Article 3 is their agreement to accept Mr Willcox for repatriation under the PTA.

[96]Once it is looked at in that way, as in my view it should be, this argument on behalf of Mr Willcox falls away. Mr Willcox has to serve subject to English law as to early release, which works in his favour the balance of the sentence just because that is what the PTA requires. The terms of the PTA alone also render wholly inapposite Mr Fitzgerald’s attempt to pray in aid, by way of analogy the situation in certain civil law contexts where the English Courts may decline to enforce foreign judgments. If he does not serve the balance, then the application of the terms of the PTA will have been breached and – as I have sought to say earlier – the policy behind the Repatriation of Prisoners Act 1984 will have been frustrated and the PTA itself could soon became a dead letter, to the detriment of other prisoners in Thailand in the future hoping for repatriation. While the possibility of a sentence contravening Article 3 may exist (see, for example, the discussion in Wellington; cf Weeks v United Kingdom

[1987] 10 EHRR 293

) it is surely not happenstance that no counsel appearing before us could locate a decision – let alone in the repatriation context – where a particular determinate sentence has in fact been adjudged to be in breach of Article 3.

[97]In my view, set in context, it cannot be said that this sentence imposed on Mr Willcox was such that to enforce it would render the United Kingdom in breach of Article 3. Thailand has clearly decided to impose deterrent sentences for drug misuse; a properly constituted court, after a proper trial process, has passed sentence on Mr Willcox, an adult, in accordance with Thai law, the validity of which has been upheld by the Thai Constitutional Court. For good measure, he stands – quite apart from any diplomatic initiatives that may be made – to benefit from the periodic amnesties or pardons that periodically are published in Thailand and he also does benefit from the early release provisions under English law.

[98]Finally, to the extent that by his grounds Mr Willcox additionally invokes Article 8 that can add nothing to his claim, as Mr Fitzgerald rightly accepted in the course of his argument.

[99]Accordingly, I also would dismiss this claim.

[100]I add one further point. By his claim form, Mr Willcox not only sought a quashing order of the warrant but also sought a declaration in these terms:- “A declaration that the Minister of Justice has a duty to exercise” his powers under section 6 of the Repatriation of Prisoners Act 1984 to revoke and vary the 17 December 2007 warrant so as to ensure that the term of imprisonment still to be served complies with the European Convention on Human Rights.

[101]This, as formulated, raises a number of difficulties. First it connotes that it is the executive (not the courts) which is to make the necessary determination of the term to be served: which seems very surprising. Second, it leaves unexplained how that determination is to be made: is it, for example, to be by reference to what is assessed (with regard perhaps being had to the intention of the Thai Court) as being a sentence which would not be considered disproportionate by the European Court of Human Rights (and, if it is, how is such assessment to be made?). Or is it to be by reference to what is assessed to be the kind of sentence - and of course that could itself involve a range of sentences – an English Court might pass for the offence? Mr Fitzgerald accepted in argument that this Court might not be ready to grant a declaration in such a form (although he proffered no alternative wording). Nevertheless the fact that relief of this kind has been claimed remains revealing: for it reflects the substance of the arguments advanced on behalf of Mr Willcox. Mr Fitzgerald was, in fact, in the course of argument asked whether he was seeking to challenge the validity (by reference to the European Convention on Human Rights) of the PTA itself. His answer was that he was not.

[102]To the extent that it remains the case that Mr Willcox remains subject to enforcement of a prison sentence of vastly greater length than ever could have been contemplated by a Crown Court in England and Wales, that is no doubt a hard result for him. But the short answer in my view is that he has been repatriated with his consent under the PTA and the terms of the PTA are to be respected: not abandoned. Mr Willcox, an adult, knew what he was doing and chose to commit an offence relating to drugs whilst living in Thailand and subject to Thai law. He must bear the consequences of the due enforcement of that law.

Willcox, R (on the application of) v Secretary of State for Justice [2009] EWHC 1483 (Admin)

The Thai legislation and sentencing process

The repatriation provisions

Was there a conviction by a criminal court or a flagrant denial of justice?

Is the detention arbitrary?

Is the sentence so disproportionate as to amount to a breach of Article 3?

Justice Davis :

Cited in 3 later judgments