Orobator v HMP Holloway & Anor [2010] EWHC 58 (Admin)

[2010] EWHC 58 (Admin)Case No CO/9527/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 th January 2010
Before
LORD JUSTICE DYSONMR JUSTICE TUGENDHAT
Between
Samantha OROBATORClaimantGOVERNOR OF HMP HOLLOWAY1 st DefendantSECRETARY OF STATE FOR JUSTICE2nd Defendant
Edward FITZGERALD Q.C. and John RWD JONES (instructed by Bindmans LLP) for ClaimantJames STRACHAN (instructed by Treasury Solicitor) for 2 nd Defendant for The 1 st Defendant did not appear and was not representedHearing Hearing dates: 8, 9 th December 2009
Judgment
[1]The claimant, a British citizen, is serving a term of life imprisonment in the United Kingdom under the provisions of the Repatriation of Prisoners Act 1984 (“the RPA”) consequent upon a prison sentence imposed on her in the Lao People’s Democratic Republic (“Laos”) for a drugs offence.[2]She was arrested at Wattay International Airport in Laos on 5 August 2008 and found to be in possession of 680 grams of heroin. She was charged with exporting drugs contrary to Article 146(4) of the Laos Penal Code and was held in custody for approximately 10 months before being convicted and sentenced to life imprisonment on 3 June 2009.[3]The claimant agreed to be transferred to the UK to serve the remainder of her sentence pursuant to the Treaty between the United Kingdom of Great Britain and Northern Ireland and the Lao People’s Democratic Republic on the Transfer of Sentenced Persons (“the Prisoner Transfer Agreement” or “PTA”). The PTA did not come into force until 25 September 2009. But the UK and Laos signed a Memorandum of Understanding on 28 July 2009 that both states would immediately apply the full provisions of the PTA administratively. She was transferred from Laos to the UK on 7 August 2009 and has been detained in HMP Holloway ever since.[4]It is the claimant’s case that she was convicted and sentenced in circumstances amounting to a flagrant denial of justice and a flagrant breach of Article 6 of the European Convention on Human Rights (“ECHR”) and that as a consequence her conviction was not by a “competent court” within the meaning of Article 5(1)(a) of the ECHR. In the result, it is said on her behalf that her continued detention in the UK is “arbitrary” for the purposes of Article 5 of the ECHR and therefore unlawful.[5]She seeks judicial review of the decision of the Secretary of State for Justice of 18 August 2009 not to release her from custody. She also seeks an order that a writ of habeas corpus ad subjiciendum be directed to the Governor of HMP Holloway. The legal framework The RPA

The legal framework

[6]Section 1 of the RPA provides: “(1) Subject to the following provisions of this section, where- a) the United Kingdom is a party to international arrangements providing for the transfer between the United Kingdom and a country or territory outside the British Islands of persons to whom subsection (7) below applies, and b) the relevant Minister and the appropriate authority of that country or territory have each agreed to the transfer under those arrangements of a particular person (in this Act referred to as “the prisoner”), and c) in a case in which the terms of those arrangements provide for the prisoner to be transferred only with his consent, the prisoner’s consent has been given, the relevant Minister shall issue a warrant providing for the transfer of the prisoner into… the United Kingdom… (7) This subsection applies to a person if he is for the time being required to be detained in a prison … (a) by virtue of an order made in the course of the exercise by a court or tribunal … in any country … outside the British Islands, of its criminal jurisdiction …” a) the United Kingdom is a party to international arrangements providing for the transfer between the United Kingdom and a country or territory outside the British Islands of persons to whom subsection (7) below applies, and b) the relevant Minister and the appropriate authority of that country or territory have each agreed to the transfer under those arrangements of a particular person (in this Act referred to as “the prisoner”), and c) in a case in which the terms of those arrangements provide for the prisoner to be transferred only with his consent, the prisoner’s consent has been given,[7]Section 3 provides: “(1) The effect of a warrant under section 1 providing for the transfer of the prisoner into the United Kingdom shall be to authorise-(a) the bringing of the prisoner into the United Kingdom from a place outside the United Kingdom;(b) the taking of the prisoner to such a place in any part of the United Kingdom, being a place at which effect may be given to the provisions contained in the warrant by virtue of paragraph (c) below, as may be specified in the warrant; and(c) the detention of the prisoner in any part of the United Kingdom in accordance with such provisions as may be contained in the warrant, being provisions appearing to the relevant Minister to be appropriate for giving effect to the international arrangements in accordance with which the prisoner is transferred”. (a) the bringing of the prisoner into the United Kingdom from a place outside the United Kingdom; (b) the taking of the prisoner to such a place in any part of the United Kingdom, being a place at which effect may be given to the provisions contained in the warrant by virtue of paragraph (c) below, as may be specified in the warrant; and (c) the detention of the prisoner in any part of the United Kingdom in accordance with such provisions as may be contained in the warrant, being provisions appearing to the relevant Minister to be appropriate for giving effect to the international arrangements in accordance with which the prisoner is transferred”.[8]Section 3 (2) of the RPA sets certain limitations on provisions to be contained in a warrant. Section 3 (3) provides that in determining for the purpose of section 3(1)(c) what provisions are appropriate for giving effect to the international arrangements mentioned in that paragraph, the Secretary of State shall “to the extent that it appears to him consistent with those arrangements 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; or(b) are framed without reference to the length: (i) of the period during which the prisoner is, but for the transfer, required to be detained in that country or territory: and (ii) of so much of that period as will have been, or be treated as having been, served by the prisoner when the said provisions take effect.”[9]Section 3 (4) gives effect to a detention provision in a warrant for all purposes as if it were contained in an order made by a criminal court in the UK (subject to section 3 (6) and the Schedule to the RPA). Section 3 (6) provides that subsection (4) shall not confer any right of appeal on the prisoner against provisions contained in a warrant.[10]The powers of the RPA 1984 were considered by the House of Lords in R v Secretary of State for the Home Department ex p Read [1989] AC 1014. At page 1048D, Lord Bridge of Harwich said that the primary policy objective of the RPA is “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, will almost always mitigate the rigour of the punishment inflicted”.[11]The RPA does not specify what is required of the foreign person or body, whether as to its constitution or its procedures, if it is to qualify for recognition as a court under the RPA. But following the coming into force of the Human Rights Act 1998 (“HRA”), article 5 of the ECHR applies, in particular:
“... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court;…”
[12]The meaning of the words ‘a competent court’ in article 5 is informed by the requirements of article 6. Article 6 provides:
“1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3 Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
[13]The effect of the HRA is that it is now open to a prisoner in the position of the claimant to challenge the lawfulness of her continued detention upon repatriation to the UK on the basis that the sentence imposed abroad was not by a competent court within the meaning of article 5(1)(a).[14]Both parties took as the starting point for their submissions (following the judgment of the ECtHR in Drozd and Janousek v France and Spain [1992] 14 EHRR 745 at para 110) that:
“The Contracting States are … obliged to refuse their co-operation if it emerges that the conviction is the result of a flagrant denial of justice [as those words are used in Soering v UK (1989) 11 EHRR 439 at para 113]”

The PTA

[15]The recitals to the PTA set out its general aims. These include(1) co-operation in the enforcement of penal sentences,(2) ensuring that this co-operation serves the interest of the administration of justice and(3) recognition that these two aims amongst others, can best be fulfilled by giving foreign sentenced persons the opportunity to serve their sentences within their own society.[16]A number of general principles are identified in article 2, including that:
“the contracting parties shall afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this treaty…”
. Article 3 identifies the Central Authorities for each Contracting Party for the purposes of implementing the Treaty. Article 4 sets out nine conditions for any transfer to take place, all of which must be satisfied before a sentenced person may be transferred. These include that “(c) the transferring and receiving Parties agree to the transfer”; (d) “the transfer is consented to by the sentenced person or, where in view of the person’s age or physical or mental condition one of the Contracting Parties considers it necessary, by his or her legal representative”;..... and (i) “unless the contracting Parties otherwise agree, a sentenced person may not be transferred unless he has made full payment of the fine, restitution of property, or compensation for damages according to the judgment of the court in the transferring Party in the criminal case”[17]Article 7 provides that the transferring Party shall retain exclusive jurisdiction in relation to the judgments of the courts of the transferring Party, as well as any procedure for the revision, modification or cancellation of said judgments. Article8.1 provides that the receiving Party is bound by the legal nature and duration of the sentence as determined by the transferring Party. Article8.2 provides that the receiving Party shall enforce the sentence as if the sentence had been imposed in the receiving Party. Article8.3 distinguishes between the sentence itself, and the continued enforcement of the sentence:
“the continued enforcement of the sentence after transfer shall be governed by the laws and procedures of the receiving Party, including those governing conditions 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.”
[18]Article 8.4 provides that if the sentence is, by its nature or duration, incompatible with the law of the receiving Party, that Party may adapt the sentence in accordance with the sentence prescribed by its own law for a similar offence. When adapting the sentence, the appropriate authorities of the receiving Party shall be bound by the findings of fact, in so far as they appear from any opinion, conviction, judgment or sentence imposed in the transferring Party.

The Lao Penal Law

[19]The substantive criminal law of Laos is set out in the Amended Penal Law [Criminal Law] No. 12/NA (“the Amended Penal Law”) which was promulgated on 23 November 1989 and came into force on 9 November 2005.[20]Article 146 of the Amended Penal Law provides that the production, trade, consumption or possession of narcotics is a crime. In particular, pursuant to Article 146.1 paragraph 4, “any person who produces, trades, distributes, possesses, imports, exports, transports or causes the transit through the Lao People’s Democratic Republic of more than five hundred grams of heroin shall be punished by the death penalty.”[21]The Amended Penal Law provides a number of substantive defences to criminal liability. Article 19 provides for exemption from penal liability in the event of “force or threat”. Thus “any individual committing an offence under force or threat in circumstances where such force or threat could not have been avoided shall not be charged or punished. In the event that such offence is a crime, [the] force or threat shall only constitute extenuating circumstances regarding punishment”.[22]Article 21 provides for exemption from penal liability in the event of “a state of necessity”. Thus “an act taken in a state of necessity refers to an individual’s act which is necessary to avoid threats against the interests of State or society, or against his own or another individual’s life, health or legitimate rights and interests, where such threats cannot be avoided by other methods and are not created by such individual and where the damage caused by such act is less than the damage that would have resulted from the threat. Acts taken in a state of necessity are not considered offences”.[23]Article 32 provides that the death sentence cannot be imposed on women “who are in the state of pregnancy at the time the offence is committed, when the court makes its decision or when the sentence is imposed.”

Lao Law on Criminal Procedure

[24]It is important to state at the outset that Laos has adopted an inquisitorial system of justice. Thus, investigators are required to take testimony from an accused person immediately after opening an investigation, and before such testimony is obtained from an accused the investigator shall notify the accused persons of his rights and obligations. According to the evidence before this court (which has not been challenged), a defendant is obliged to provide testimony or explanations relating to the charges brought against him or her and has the right to refuse to answer questions, but the defendant may not be compelled to plead guilty.[25]Lao Law on Criminal Procedure (“the Procedure Law”) makes extensive provision for criminal procedure which, if applied, would satisfy the fair trial requirements of Article 6 of the ECHR, although Laos is not a signatory to that convention.[26]Article 6 of the Procedure Law provides that criminal proceedings “must be conducted on the basis that all citizens are equal before the law and the people’s courts”. Article 7 provides that an accused person has the right to defend the case, and may defend himself or have a lawyer to provide him legal assistance. It also provides that the people’s courts, public prosecutors, interrogators and investigators shall guarantee “the right of defence in the proceedings to an accused person in order to protect his legitimate rights and interests.” Article 8 provides that “in criminal proceedings, as long as the accused person or defendant has not yet been convicted pursuant to the final decision of the people’s courts as a wrongdoer, he shall be regarded as innocent and shall be treated properly.”[27]Article 11 provides that “in considering and deciding a case, judges shall be independent and comply with the laws only.” Article 12 provides that persons who participate in the proceedings who do not know the Lao language have the right to use their own language or other languages through translation”. A trial in open court hearing is guaranteed by Article 13. The right to challenge individuals involved in the proceedings on the grounds they have any interest in or conflict with the party to the case is set out in Article 15.[28]Article 17 provides that the people’s court, public prosecutors, interrogators and investigators are required to “apply measures provided by the laws to ensure that the proceedings are comprehensive, thorough and objective, with the aims of finding evidence to prove the guilt or to confirm the innocence of the accused person or defendant and of examining reasons to reduce or increase criminal liability. In the taking of testimony from the accused person or defendant…it is prohibited to use violence, force, threats, beating or other unlawful measures.” Article 21 provides that any admission made by an accused person should not be the main factor taken into account in criminal proceedings. Additional evidence to prove the guilt of such persons should be sought.[29]The defendant is guaranteed a number of rights of defence and appeal under Article 28. An accused has the right to be informed of and defend against the charge made against him; to submit evidence; to ask to see the documents in the case file and to make a copy of required documents from the file, or to make notes of necessary information contained in the file, after investigation has been completed; to remain and meet with a lawyer or other prosecutor to contest the case; to participate in court hearings; to require the recusal of a judge, public prosecutor, interrogator, investigator, expert, or translator; to complain of the acts and orders of investigators, public prosecutors, or the people’s courts that he believes to be unlawful; to make a final statement in court hearings as the last party; to appeal against, or request the cancellation of, an order of an investigator, an interrogators, or a public prosecutor, or an instruction order, or decision of the people’s courts.[30]Article 35 sets out the rights enjoyed by a lawyer, including the right to meet the accused, see the documents in the case file, submit evidence and requests, participate in court hearings and provide opinions, complain against the acts or orders of an investigator, and appeal against a decision of the people’s courts.[31]Part VI of the Procedure Law deals with proceedings on appeal. The right of a defendant, or her lawyer, to request an appeal against a decision of the people’s court at first instance is contained in Article 85, subject to the right of the public prosecutor to object on the grounds of insufficient reasons. Under Article 89 the defendant has the right to present new evidence in the court of appeal, before the public prosecutor makes his statement in the court hearing. The appeal procedure is described in more detail in Article 90. Articles 91 and 92 concern the court of appeal’s scope of jurisdiction in a criminal case. The court of appeal reviews the legal correctness and the reasons for the decision under appeal.

The facts

[32]The following recital of the facts is based on the material which was put before us, and which was the subject of no significant dispute between the parties. Much of this recital is of facts recounted by the claimant and those assisting her, in particular Anna Morris, who is an English barrister. The defendants’ knowledge of the circumstances of the claimant’s detention in Laos is confined to that of the representatives of the British and Australian diplomatic services who made representations on her behalf, and attended meetings in Laos (at one of which Anna Morris was also present), and who attended the claimant’s trial. Neither the claimant nor those who have submitted statements in support of her claim understand the Lao language. It is clear that many people have made very great efforts to assist her, both those in the diplomatic service and those representing the NGO Reprieve, the human rights organisation.[33]In support of the defendants’ case, witness statements have been submitted by Mr Wilkinson and Mr Shaw. They have exhibited the judgment of the Laotian court and other documents to which we refer in this judgment, including the advice of an expert in Laotian law which was obtained after the claimant had been repatriated, for the purposes of the present proceedings. No significant issues of fact arise between the parties out of these materials.[34]On 14 September 2009 this court directed that the Government of Laos be notified of these proceedings and invited to participate as an interested party, if it wished. On behalf of the Secretary of State, Mr Wilkinson accordingly wrote to the Director of Cabinet of the Ministry of Justice of Laos to that effect. The letter stated that the claimant alleges that her trial in Laos was a flagrant denial of justice such that the UK cannot legally enforce her sentence, and that the claim primarily relates to the fairness of the proceedings in Laos. The letter attaches a copy of the claim, but not the evidence in support. We therefore infer that no details of the specific allegations made by the claimant, or on her behalf, have been communicated to the Government of Laos, or to the individual Laotians whose conduct is impugned by the claimant.[35]No communication from the Government of Laos, nor any representations or evidence on behalf of any individual Laotian has been put before this court. It follows that in these proceedings it is in substance the Laotian judges and court that has been on trial, but this court has heard and seen no representations on their behalf.[36]In the event we have not had to make any findings of fact adverse to any individual in Laos. We have been able to reach the conclusions that we have reached either on the basis of agreed facts (since much is agreed), or on the assumption that the evidence given by the claimant, and on her behalf, is all true. And in fairness to the individuals in Laos whose personal conduct has been impugned, we do not name them in this judgment. The most prominent individual in this category is the lawyer who represented the claimant at her trial.[37]The claimant is now 21 years of age. She has a history of mental health problems, self-harm and attempted suicide. She has been a victim of sexual and physical abuse by men.[38]Her presence in Laos was orchestrated by two Nigerian men, to whom she refers in her witness statement as “Mr Bobby” and “Mr James”. She says that she was raped by Mr Bobby and became pregnant. These two men arranged for her to be sent to Thailand and from there to Laos, on the pretext that there was an opportunity for her there in the fashion business.[39]Once in Laos, the claimant fell into the hands of two other Nigerian men to whom she refers as “JJ” and “John”. She says that they coerced her into taking possession of heroin by taking her passport and threatening to kill her if she did not carry the drugs to Australia. They further intimidated her by assaulting and raping her. Consequently, she carried the drugs to the airport on 5 August 2008. They were wrapped in packages and carried in her suitcase. She tried to dispose of some of the packages at the airport, but she was arrested by the Lao authorities before she was able to board the aircraft for Australia.[40]She was seriously mistreated by the authorities from the outset. We do not find it necessary to describe in detail all the indignities and threats to which she was subjected, but see no reason to disbelieve her account. She was taken to Phonthong prison where she was detained. On 7 August 2008, the Consular Section of the British Embassy, Bangkok was informed by the Australian Embassy, Vientiane of her arrest. The UK does not have an embassy in Laos. UK consular officials in Bangkok cover Laos. The first consular visit took place on 14 August. During the course of this visit, the claimant was provided with a list of lawyers compiled by the British Embassy, Bangkok. Between August 2008 and February 2009, the claimant was visited on a number of occasions by members of the UK Foreign and Commonwealth Office and/or the Australian Embassy.[41]Meanwhile, the claimant had been questioned by Lao official investigators early on without a lawyer being present. When she asked for a lawyer, she was told that “it doesn’t work like that here”. She was held in custody in Laos for approximately 10 months. The conditions of her detention were extremely harsh and potentially life-threatening. Investigators intimidated her and on one occasion the translator accused her of lying and said that if she were a man, he would have hit her. She was made to sign documents in Laotian and was never given an English translation of anything that she signed. No copy of the statements that she signed has been made available to those representing her in the present proceedings.[42]She became pregnant whilst in prison by clandestine means. She did this in order to save herself from the death penalty, since she knew that the death sentence could not be imposed on her if she was pregnant at the time when she was convicted or sentenced: see [23] above. This led to further oppressive questioning of the claimant by the Lao authorities who were extremely concerned to establish that her pregnancy was not the result of her having been raped while she was in prison in Laos.[43]During a visit on 11 September 2008, she told consular staff from the British Embassy that she could not afford a lawyer and that her aunt should be contacted to fund her legal representation. But her aunt could not afford a lawyer. On 14 November, the claimant told consular staff from the Australian Embassy that she had been unable to appoint a private lawyer and that a request should be made through the British Embassy that the Lao authorities appoint a lawyer on her behalf. She also signed forms authorising Reprieve to assist her with her case and asked her mother to help with the funding of legal representation.[44]By 30 January 2009, the claimant’s mother had concluded that she could not afford to pay for a lawyer. Accordingly, the British Embassy arranged for a formal request to be made to the Lao authorities for the appointment by them of a lawyer to act on her behalf.[45]The claimant spent many months in prison without being told anything about her impending case. Reprieve, which had been assisting the claimant, recruited the services of the volunteer English barrister, Ms Morris, to advise and represent the claimant. Arrangements were made for Ms Morris to spend three full days with the claimant on 5, 12 and 14 May. On 1 May, the Lao Government suddenly announced that they were bringing the claimant’s trial forward to the week beginning 4 May. At this point, a lawyer had not yet been assigned to represent her. Ms Morris arrived in Vientiane (the capital of Laos) on 3 May. At 8.45 on 4 May, she was told that the trial would not be taking place that day after all. No reason was given and no other date offered. On 5 May, the UK Vice-Consul told Ms Morris that the Lao authorities would not permit her to see the claimant at all and would only allow her to speak to the Lao lawyer when he was appointed by them.[46]On the same day, the claimant was visited by the investigators. She refused to be interrogated by them in the absence of a lawyer. They left some written questions with her, telling her that she was obliged to answer them. This she did in writing without the benefit of legal advice. In her answers, she stated that she had encountered two men in Vientiane and that they had raped and beaten her and threatened to kill her if she did not do as they asked.[47]It was at about this time that Mr A was appointed as her lawyer. On 6 May, he met Ms Morris. He told her that he was still awaiting a formal letter of “procurement” and was therefore not yet representing the claimant. On 7 May, Reprieve received disturbing information about a Lao official’s attempt to secure a bribe of $100,000 as a condition for the release and pardon of the claimant. On the same day, Reprieve wrote to the Lao Prime Minister and sent a copy to the FCO. No reply was received from the Lao authorities.[48]On 7 May, Ms Morris met Mr A for the second time. Ms Morris gave Mr A a written list of questions relating to her health and welfare. She alerted him to a psychological report that had been obtained which gave details of the claimant’s background and stated that she was vulnerable and had mental health problems. Mr A was reluctant to discuss the claimant’s case with Ms Morris. Ms Morris told him that, in view of the claimant’s delicate mental state and the experiences that she had undergone, she thought that it would take some time to establish a meaningful attorney-client relationship of trust.[49]On 8 May, Mr A met the claimant for the first and only time before her trial. This meeting took place in the presence of Lao officials and prison guards. On the same day, Ms Morris wrote to Mr A expressing her concerns about the claimant’s written answers to the investigators’ written questionnaire. She pointed out, however, that, if the prosecution were permitted to use the material contained in these answers in court, the answers could form the basis of a defence of duress. In her letter she wrote: “I trust that if the defence of duress is available to Samantha under Lao law, you will be advising Samantha of its availability and advancing duress at trial. We have referred to Article 19 and 21 of the Amended Penal Code at [21] and [22] above.[50]Ms Morris states that later on 8 May she was told by a member of the press that he had been told by a Lao Government spokesman that the claimant had been made to sign a statement saying that she had not been raped in prison; if she signed such a statement, she could have a trial and apply for a transfer to the UK.[51]Ms Morris met the claimant for the first and only time on 12 May. Lao officials were present. Ms Morris says that she heard the interpreter translate one of the remarks made by an official as “the sentence has been finalised” and another as “the case has been finalised”. She says that she was told that, because the case had been finalised, the claimant had nothing to hide and that she could answer any questions put to her at the meeting. She also informed the claimant about the PTA and that she would have to undergo a form of trial before she could apply for a transfer to the UK under the PTA. She told the claimant not to expect anything more than a short show trial. One official, introduced to Ms Morris as a colonel, told the claimant that the Lao authorities wanted to know who the father of her baby was. He said that the claimant had already signed a statement saying that the father was her boyfriend. Ms Morris formed the impression that the Lao were making it clear that the trial was a formality for them and that the pregnancy was the more important issue. It seemed to her that the Lao authorities were concerned to have a statement from the claimant that she had not been raped in prison and were using the timing of the trial as a means of pressure to this end. The Colonel made it clear that a trial could only take place if the claimant signed a statement that day saying that her boyfriend was the father of the baby. He repeated that the trial could take place very quickly, but only if she signed the statement. The Director of Prisons (who was also present) said that the claimant should sign the document and that the British Embassy staff and her British lawyer should also sign it to “conclude the case”. Ms Morris says that she advised the claimant not to sign and that she made it clear that she (Ms Morris) would not sign, witness or verify a statement made under duress. The claimant then asked whether, if she signed the document, she would be asked any further questions. Upon being told that she would not, she signed the document. The claimant says that she signed because she was promised that the trial would proceed if she did:
“I was frantic to try and get the trial over with so that I would not be giving birth in prison”
. Her fear was that, if she gave birth before the trial took place, her baby would be taken into care in Laos.[52]Ms Morris had considerable doubts about Mr A. The claimant did not trust Mr A either: she says that he made no attempt to discuss her defence with her. So far as the claimant was concerned, he was part of the Lao attempts to get her to sign documents saying that she was pregnant before she arrived at the prison. She says that she was told by a fellow prisoner (who she identified), that Mr A worked in the Public Prosecutor’s Office and initially was not even going to be present at the trial.[53]Ms Morris says that it was decided by Reprieve that the only practical way for the claimant to be allowed to leave Laos and get proper care for herself and her baby would be for her to have a trial, no matter how unsatisfactory, to obtain the pre-determined verdict and be sentenced, so that she might be eligible to apply for transfer to the UK under the PTA. To try to ensure that all this happened as quickly as possible, they decided to “take a step back for a while and continue to lobby the UK government”. For this reason, Ms Morris returned to the UK on 17 May.[54]The trial took place on 3 June. The claimant was informed the previous evening. She had prepared notes for her trial which had been deliberately destroyed by prison guards on 12 May, apparently as a punishment for her having passed notes to Ms Morris. The trial started at 13.50 hrs. There were three judges. Approximately 60 observers were present, including people from the UN, various universities, Lao nationals from the justice and police departments and many journalists (including western reporters). Mr A was present with an interpreter, but the claimant says that she could not understand very much of what the interpreter was saying. She was asked to give her name and for about 20 minutes was cross-examined by the prosecutor along the lines of the written questionnaire which had been given to her on 5 May. She says that before the hearing Mr A had told her to apologise for her crimes and that he did not advise her that she had a defence.[55]At 14.30 hrs, Mr A was invited by the court to speak. The note prepared by an observer from the British Embassy, Bangkok of what he said includes:
“3. He then made a statement asking for mercy, requesting the Judges to reduce the sentence. The Judges asked Samantha whether she was aware that under the LAO PDR law the possession of drugs was a criminal charge and that the sentence for such charges was severe. (Could not properly hear the dialogue) 4. The Judges invited the defendant’s lawyer to read out his statement. He emphasised the defendant did not have any intention to commit a crime. Samantha was naïve and still very young. She was forced and threatened to carry the drugs by two abusive Nigerian men. Furthermore supporting reasons were explained (could not hear properly). The statement lasted approximately 20 minutes. ”
[56]A written submission by Mr A was handed to the court. It includes:
“According to Samantha’s statement, she said that the amount of heroin 68 pieces (680g) found on her when she arrested at the Wattay airport belongs to J.J. J.J handed to her on 4th August 2008 in her hotel room. John and J.J. forced her to carry them by taking her hand-phone, passport and her money ($500). They also threatened her life and that of her family if she went to make know. In addition, they followed here wherever she went. J.J told her that she was to give heroin to someone in Australia.”
[57]A little later, it states:
“….but she did it by necessity as determined under article 21 of the criminal law because bad people James, John and J.J. have induced her to carry their illegal project…..Everything was done by them. She had to do what they instructed her to do.”
[58]Among the papers before us there is also a translation of the oral submissions made by Mr A. In large measure they follow the written submission which he handed to the court.[59]At the end of the hearing, the judges retired for about half an hour. On their return, they sentenced the claimant to life imprisonment and imposed a fine of 600,000,000 kip. The official note of the judgment states:60. On behalf of Lao People Democratic Republic61. Based on duty and power vested to the Court under the Law on People’s Court of Lao PDR, has informed the first and last names of the Court members, Prosecutor and Court Clerk as well as well the right of Plaintiff, Defendant and Lawyer of Defendant to protest and change members of the Court.62. Has informed the charge filed by the Prosecutor and the right of Defendant to testify in proceedings.63. Has listened to the statement of the Defendant.64. Has listened to the statement of the Lawyer of Defendant.65. Has listened to the statement of People’s Prosecutor.66. Has listened to the final testimony of the Defendant.67. Court’s consideration68. Having studied documents, information and evidence accompanied with the case files and the result of the court inquiries:69. Samantha Orobator confessed in the statement taken by the Police dated 5, 18 and 27 August and 3 September 2008 that she had met a man called James, Nigerian, in the Netherlands. James was her friend. James advised her to come to Thailand for holiday, James had a brother living in Thailand and waiting there.70. Before going to Thailand, James gave to Samantha John’s phone number and told her that he would tell Mr John to wait at the airport; if she did not see him she could call John. When arriving in Bangkok on 31 July 2008, she called John, but no answer. So she called James to learn that John had left for Lao waiting for her there. That is why she came to Laos, on 31 July 2008 by Thai Airways arriving at about 8-9 p.m. When she was on the plane she got a call from James telling her to stay at Orchid Hotel as he had reserved a room, and so she stayed there for a night. On the morning of 1 August 2008, John came to see her at the hotel with a guy called JJ, Nigerian, they took her out for lunch and looked for a new hotel. She moved to a new hotel called Phoxay, room 14. At 1 am of 5 August 2008, J.J. and John gave her 68 tubes of heroin in the hotel room of Phoxay Hotel located in Watchanh Village, Chanthabury District, telling her to transport the heroin to Australia; when she arrived in Sydney there would be someone taking the heroin from her and she would get paid 10,000 Australian Dollars. J.J. and John though her how to conceal the heroin, at first they advised her to swallow, but she could not do it. So John told her to hide on the body. At 12 noon, she got a Jumbo from the Hotel to the Wattay Airport. When the custom officers searched her baggage and body, they found the heroin. She was arrested for investigation according to report No. 15/WTCO dated 5 August 2008 and the arrest report dated 5 August 2008, and the case was filed to the court according to Prosecutor’s case file No. 312/PVC dated 16 February 2009.71. Having considered the case together with the result of laboratory test of Food and Drug Department, Ministry of Health No. 938-08/FDD dated 3 September 2008 certifying that the suspect objects contained psychoactive drugs – heroin type.72. As well as the report on weight check of the drugs No. 13/DPP dated 5 September 2008 of Drug Prevention Police, confirming that it was heroin containing in 68 tubes weighted 680 grams, white color wrapped in tubes.73. It is deemed that the Defendant deliberately took the heroin from other people and conceal on the body to transport to Australia, which reflected in the fact that on 5 August 2008, J.J. and John brought heroin in 68 tubes weighed 680 grams to her in the hotel room then she hid it on her body and brought the heroin from the Hotel to Wattay Airport. The Defendant had intention to transport the heroin to Sydney, Australia, bringing it to a person (name unknown) in return of 10,000 Australian dollars. The Defendant committed the act knowing that the heroin is illicit drugs prohibited to be sold, bought, transported or possessed, but the Defendant still committed this act. Consequences of this act would be the harm to other people’s health, national security and economy, disorder and disturbance in the society. This crime deserves capital punishment as stated Article 146 paragraph 4 of the Criminal Law.74. It is considered that the plaintiff was in her right mind and fully adult.75. Judging by the statement of Vientiane Capital People Prosecutor and the appeal of the Defendant’s lawyer Mr A asking for criminal punishment reduction the court considered them partly reasonable, so the Court will consider them.76. The result of health check-up on 4 April 2009 confirmed that Ms Samantha Orobator (Defendant) was 17 months pregnant. According to Article 32 of the Criminal Law stating that the capital punishment is for those committed most serious offences stated in the Criminal Law, it is prohibited to use this punishment to prosecute minors under 18 years of age at time of crime and pregnant women at time of crime or convicted and the Article 40, point 2 of the Criminal Law concerning the reasons for punishment reduction, therefore the Court decided to reduce the punishment from capital punishment to life imprisonment and fine of 600,000.000 Kips (Six hundred Millions Kips).77. ………..78. It is considered in accordance with Article 32, 34, 37, 40, point 2 and 146 point 1, paragraph 3 of the Criminal Law, Articles 28, 29, 30, 32 and 33 of the Law on Court Fees and Articles 82, 85 and 86 of the Law on Criminal Procedures (revised).79. Therefore,80. The Court decides before public at first instance with presence of the plaintiff, defendant and defendant’s lawyer that:81. Ms. Samantha Orobator (Defendant) is guilty of procession of, transport of illicit drugs – heroin.82. Ms. Samantha Orobator is sentenced with life imprisonment and fine of 600.000.000 Kips (Six hundred Millions Kips).83. ………….84. The Court has informed the plaintiff, defendant and defendant’s lawyer that if any party is not satisfied with the Court’s decision, they have the right to appeal within 20 days from the signature date of this decision.85. Signed Signed86. Mr [KP] Mr [UP]87. President Court Clerk[60]Ms Morris had provided Mr A with a number of witness statements and reports which showed that the claimant had been abused and was vulnerable to any pressure or duress applied to her. He was asked by Ms Morris to use this material either by way of defence or mitigation. It seems that none of this material was used by Mr A. That is consistent with what the Lao expert report obtained by the Secretary of State says:
“in practice, the ability of the defendant’s lawyer to speak and ask questions during the trial process is limited...”
[61]As the claimant did not want her baby to be born in prison in Laos, and wanted to return to the UK at all costs and as soon as possible, she signed a paper saying that she did not wish to appeal. She had already been advised by Mr A that there was no way to challenge the guilty verdict and she says that she knew that she had to end any court process in Laos so that she had the best possible chance of getting back to the UK before her baby was born. In deciding not to appeal, she was also influenced by the fact that prisoners in Laos are treated badly. She had seen two female prisoners placed in wooden blocks for two weeks and then put in shackles. Finally, it is said on her behalf that there was also the possibility that, if she remained in Laos, the court might reconsider imposing the death penalty as she would no longer be pregnant by then. But it is not clear from the evidence whether the claimant was aware of this possibility and whether it formed any part of her thinking.[62]Having renounced her right of appeal, the claimant signed a repatriation agreement and was repatriated on 6 August 2009.

Summary of the rival submissions

[63]Mr Edward Fitzgerald QC submits that the claimant cannot be lawfully detained in the UK because she was convicted in circumstances where she suffered a flagrant denial of justice and flagrant breach of article 6 of the ECHR. As we see it, there is no difference between a “flagrant denial of justice” and a “flagrant breach of article 6 of the ECHR”. We shall use the expression “flagrant denial of justice” to denote both. Mr Fitzgerald accepts that the bar of “flagrant denial of justice” is set very high, but he submits that it is reached on the facts of this case. He submits that there are a number of features of what occurred in Laos which, taken together, lead to this conclusion. But he says that there is one feature which stands out and which alone suffices. This is the fact that the court which convicted and sentenced the claimant was neither independent nor impartial. Mr Fitzgerald submits that this fact alone necessarily means that the claimant suffered a flagrant denial of justice such that the conviction was not by a “competent court” within the meaning of article 5 of the ECHR.[64]Mr James Strachan submits that, although in a number of respects the claimant suffered a denial of justice, the shortcomings in her treatment did not amount to a flagrant denial of justice. We shall start with the central question of whether the court’s lack of independence and impartiality of itself gave rise to a flagrant denial of justice. Did the court’s lack of independence and impartiality of itself give rise to a flagrant denial of justice? The evidence[65]As we have said, the formal constitutional position is that article 11 of the Procedure Law provides that judges in Laos “shall be independent and comply with the laws only.” But material placed before us (including the expert evidence obtained by the Secretary of State for the purposes of these proceedings) suggests that the true position in Laos is different.[66]The expert evidence includes the following at para 6 of the report: “Article 11 of the Law on Criminal Procedure provides that judges shall be independent and comply with the laws only in considering and deciding a case. In practice, however, there are no procedures in place which affect (sic) their independence. As with other positions of authority within the Government, in order to be appointed as a judge, an individual must be a member of the Communist Party of the Lao People’s Democratic Republic. There is no division of powers in Lao PDR, and the People’s Court is a direct arm of the government. The People’s Supreme Court (the court of final appeal) in Lao PDR must report to the National Assembly and the National Assembly is empowered to issue instructions that can overrule decisions of the Supreme Court”.[67]Mr Fitzgerald also relies on various Human Rights Reports. The US Department of State 2008 Human Rights report for Laos describes Laos as “an authoritarian, one-party state ruled by the Lao People’s revolutionary Party”. With regard to the right to a fair trial, the report states:
“Court litigants may select members of the Lao Bar Association to represent them at trials. The association is nominally independent but receives some direction from the Ministry of Justice. For several reasons, including the general perception that attorneys cannot affect court decisions, most defendants did not choose to have attorneys or trained representatives… Under the law defendants enjoy a presumption of innocence; however, in practice judges usually decided guilt or innocence in advance, basing their decisions on the result of the police or the prosecutor’s investigation reports. Most trials were little more than pro forma examinations of the accused and review of the evidence.”
[68]Mr Strachan points out that the report also states that “in past years” senior government and party officials “influenced the courts although no such cases were reported during the year”. It also states that the law provides for open trial in which defendants have the right to defend themselves with the assistance of a lawyer or other persons, with defence attorneys provided at government expense only in cases where there is the possibility of life imprisonment or the death penalty.[69]Amnesty International in a July 2002 report concluded that: “Whatever limited protection exists in Lao law to uphold the rights of the accused is not applied in practice, and individuals are at the mercy of a system which lacks transparency, clarity or reason”.[70]In relation to the right to a fair trial, Amnesty International stated under the heading “No legal process”:
“Lao law does list a number of rights for the accused, but Amnesty International is extremely concerned at the apparently wholly arbitrary application of the law of Laos, which leads to human rights being violated with complete impunity on a daily basis…..The process by which a case reaches the court appears to be wholly haphazard; individuals’ cases simply do not get heard, and detainees have no access to lawyers, and often remain in ignorance of the charges against them.”
[71]In its 2009 report for Laos, Freedom House stated:
“The courts are corrupt and controlled by the LPRP”
. In a letter dated 18 September 2009 to the claimant’s solicitors, Amnesty International said: “in the instances where Amnesty International has received information in individual court cases….courts have fallen far short of international fair trial standards and demonstrated serious lack of integrity”.[72]Mr Fitzgerald also relies on the account given by Mr and Mrs Danes of their experiences of the Lao prison and criminal justice system. In her witness statement, Mrs Danes describes how she and her husband were detained on trumped-up charges in prison from 23 December 2000 until 8 October 2001. Their arrest, detention and prosecution were part of a politically and economically motivated plot to compel them to sign false statements admitting to wrongdoing which would discredit their client, Gem Mining Laos, in order to enable the Lao Government to nationalise the company. Mrs Danes was tortured by the Lao authorities while she was in prison and interrogated by Government officials who put a gun to her head threatening her and her husband and saying:
“You have no rights. You are in Laos. We don’t follow Western law here. We will tell you what you can and cannot do. You cannot speak of human rights, you are in Laos.”
[73]The meaning and application of “flagrant denial of justice” has been considered in a number of cases to which we should refer before we express our view on the question of whether the lack of independence and impartiality of the judiciary in Laos of itself means that any conviction and sentence by a court in Laos is the result of a flagrant denial of justice. The authorities on “flagrant denial of justice”[74]The relationship between articles 5 and 6 of the ECHR is not contentious. As Lord Phillips noted in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2009] 2 WLR 512 at [138] “It is the Convention organs’ case law that the requirement of article 5(1)(a) that a person be lawfully detained after “conviction by a competent court” does not imply that the court has to subject the proceedings leading to that conviction to a comprehensive scrutiny and verify whether they have fully complied with all the requirements of article 6 of the Convention.

(a) ”: Stoichkov v Bulgaria (2005) 44 EHRR 276, para 51”

[75]The meaning of the phrase “flagrant denial of justice” was explained in the partly dissenting opinion of Judges Bratza, Bonello and Hedigan in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, 537 para O-III14 as conveying “a breach of the principles of fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article”. This explanation was endorsed by Lord Bingham in EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, [2008] 3 WLR 931 at [34] and [35].[76]The same phrase has been used by the ECtHR in the context of the enforcement of a conviction by a foreign court in a state which is a party to the ECHR: see Drozd and Janousek v France and Spain [1992] 14 EHRR 745. The applicants in that case had been convicted by an Andorran court. They claimed that their detention in France was contrary to French ordre public, of which the ECHR formed a part and that the French courts had not carried out any review of the judgments of the Andorran court whose composition and procedure did not comply with the requirements of article 6. At [110], the ECtHR said: “The Court, like the Commission, considers that in this case the Tribunal de Corts, which pronounced the conviction…is the “competent court” referred to in article 5(1)(a). 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”.[77]It was argued on behalf of the applicants in Drozd that there had been a flagrant denial of justice on the grounds that one of the judges in the Andorran trial was a municipality leader who, inter alia, was responsible for policing. The appellate system in force at the time of the conviction involved an appeal to the tribunal which had convicted the appellant, including the relevant judge who lacked independence. By a bare majority (12-11), the ECtHR held that the composition of the tribunal did not amount to a flagrant denial of justice.[78]In Othman v Secretary of State for the Home Department [2008] EWCA Civ 290, [2008] 3 WLR 798, the Court of Appeal recorded the argument advanced on behalf of the Secretary of State that a defect in composition such as occurred in Drozd, arguably even more open to objection in article 6 terms than the military nature of the State Security Court in Jordan (“SSCt”), which was under consideration in Othman, did not bring the case within the Soering principle (that there had to be a real risk of a flagrant breach of article 6): see Soering v United Kingdom (1989) 11 EHRR 349 at para 113. But Buxton LJ, giving the judgment of the court, noted at [38] that Drozd had been cited in subsequent cases for its statement of principle rather than for its result. He said:
“More fundamentally, however, the ECtHR does not seem to have treated the composition of the sentencing court as a separate and conclusive issue”
. At [39], he said: “We would agree with Mr Sales that if it were the case that any element at all of lack of independence of a foreign court attracted the Soering principle then it would be very difficult to see how Drozd could have been decided as it was. But for the reasons that we have given we cannot regard Drozd as conclusive and fully reasoned authority to that effect”.[79]He also considered the ECtHR decision in Al-Moayad v Germany (2007) 44 EHRR SE 22, a decision relied on by Mr Fitzgerald before us. Al-Moayad concerned the removal of a person to face charges in the USA. An assurance had been given by the US authorities that the applicant would not face trial in a military court. Mr Fitzgerald relies on this passage at para 101:
“A flagrant denial of a fair trial, and thereby a denial of justice, undoubtedly occurs where a person is detained because of suspicions that he has been planning or has committed a criminal offence without having any access to an independent and impartial tribunal to have the legality of his or her detention reviewed and, if the suspicions do not prove to be well-founded, to obtain release....Likewise, a deliberate and systematic refusal of access to a lawyer to defend oneself, especially when the person concerned is detained in a foreign country, must be considered to amount to a flagrant denial of a fair trial within the meaning of Art 6(1) and (3)(c)...”
[80]At [41] of his judgment, however, Buxton LJ analysed this passage and said that it was:
“not clear how far the holding of a subsequent trial, if indeed any trial ever took place, before a military tribunal would, if that had been the only complaint against the USA process, have been seen as a sufficiently flagrant breach of article 6 rights. Al-Moayad cannot be read as deciding that the prospect of a trial in any tribunal other than orthodox civil courts of itself renders an expulsion unlawful under article 6.”
[81]In Othman, one of the questions that had to be determined by SIAC was whether the deportation of Mr Othman from the UK to Jordan gave rise to a real risk that he would face a trial in Jordan which would involve a flagrant breach of article 6. The objections raised to the trial process that would await Mr Othman in Jordan included that the trial would not be conducted by an independent and impartial tribunal. SIAC set out the relevant facts at paras 391-394 and 432-434 of their judgment. They stated their conclusions at paras 442-452. They accepted that there was a lack of institutional independence in the Jordanian SSCt. The court consisted of three judges, two at least of whom, including the presiding judge, were senior military officers. The judges were appointed by the Prime Minister on the recommendation of the Head of the Joint Chiefs of Staff. They had no security of tenure and could be replaced by executive decision.[82]SIAC concluded that the lack of institutional independence meant that any trial would involve a breach of article 6, but that the breach would not amount to a flagrant denial of justice. In reaching the latter decision, SIAC said at para 452 that the concept of a total denial of a fair trial conveyed “a sense of a trial which overall is largely or essentially indefensible, affronting any true sense of justice or fairness, even though that affront did not have to be so grave as a mere show trial or facade for a pre-determined conclusion”. At para 450, they said:
“There is a danger, given the inevitable focus on what is said to be potentially unfair about the retrial, in focussing exclusively on deficiencies when deciding whether there would be a total denial of the right to a fair trial, rather than looking at the picture of the trial as a whole. That is what has to be done, however, and it is that picture as a whole which has led us to our conclusion on this issue”
[83]The features which led SIAC to their conclusion that the lack of institutional independence of the SSCt did not mean that a retrial would involve a flagrant denial of justice were that(i) the retrial would take place within a legally constructed framework covering the court system, the procedural rules and the offences;(ii) the appellant would be present at the retrial;(iii) the trial would be in public and would be reported;(iv) the applicant would be represented by a lawyer and at the public expense, if necessary;(v) he would know of the charges and the evidence;(vi) the prosecution evidence could be challenged;(vii) the appellant could give evidence and call witnesses;(viii) although the court lacked institutional independence, there was no evidence as to why particular judges were chosen for particular cases, or that they were “leaned on” by the executive and there was evidence that the court was not a mere tool of the executive;(ix) the judges had legal training and were career military lawyers;(x) reasons would be given for the decisions; and(xi) an appeal to the Court of Cassation was available: the fact that such an appeal could not cure the want of structural independence in the SSCt was not a reason for discounting its existence in the overall assessment of whether there would be a complete denial of article 6 rights.[84]In arguing Mr Othman’s appeal, Mr Fitzgerald cited a number of authorities to the Court of Appeal in support of the submission that SIAC had erred in law in not treating the tribunal’s lack of independence as conclusive, rather than (as they did) treating the nature of the tribunal as only one element in the assessment of whether Mr Othman would suffer a total denial of justice if he was tried in Jordan. At [35], Buxton LJ said that all Mr Fitzgerald’s citations were of domestic cases addressing the obligations of the signatory state in relation to the legal system for which it was responsible. They did not address the question whether there would be complete denial or nullification of the right to a fair trial in the non-signatory receiving state. He said that it was open to SIAC to proceed as they did in addressing that question “by carefully analysing the actual position and procedure of the [SSCt]”. He concluded that “SIAC did not act irrationally in reaching [its] conclusion, which was based on a correct statement of the issue and which was open to it on the evidence”.[85]Mr Othman and two other claimants appealed to the House of Lords: see RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 9, [2009] 2 WLR 512. At [133], Lord Phillips noted that there was no reported “foreign” case where article 6 had successfully been invoked. Lord Brown made the same point at [258], observing that an expulsion or extradition case had not once succeeded on the grounds of a violation of article 6, not even in the “somewhat shocking circumstances which arose in Mamatkulov and Askarov v Turkey 41 EHRR 494”. At [136], Lord Phillips said that in order to establish a “complete denial or nullification of the right to a fair trial” what was required was “that the deficiency or deficiencies in the trial process should be such as fundamentally to destroy the fairness of the ...trial”. At [137], he said that the focus must be “not simply on the unfairness of the trial process but on its potential consequences.” As regards the approach of SIAC to the question whether there was a real risk that there would be a flagrant breach of article 6 by reason of the composition of the court, Lord Phillips was content at [146] to say that he had reached the same conclusion as SIAC and endorsed the reasoning of the Court of Appeal. Lord Hoffmann at [203], Lord Hope at [247] and [249], Lord Brown at [252] and Lord Mance at [262] agreed on this point.[86]Mr Fitzgerald places much reliance on two UK authorities in support of his submission that the institutional lack of independence and impartiality of the judiciary in Laos is sufficient of itself to demonstrate that any conviction by a court in Laos results from a flagrant denial of justice. The first is DD and AS v Secretary of State for the Home Department [2007] UKSIAC 42/2005. This was a case where two Libyan nationals successfully resisted deportation to Libya on the grounds that there was a real risk that their article 3 and 6 rights would be violated if they were deported. At para 388, SIAC said:
“Two elements stand out. The first is that the judiciary completely lacks independence in this sort of case. It would be influenced, decisively so, by what Colonel Quadafi says in public or in private. Indeed the SSHD’s case relies on this lack of independence, for it assumes that Colonel Quadafi would instruct them that they are to reach a decision based fairly on the evidence, and that they need such an injunction. There is a real risk in the scenarios which we have considered that he would go further in private.”
[87]At para 389, they said that the second element was that evidence which had been procured by torture would be admitted. At para 392, they said that they could not say that there was not a real risk of a complete denial of a fair trial.[88]We would make two points about this decision. First, it is not clear whether SIAC would have reached the same conclusion if the lack of independence issue had stood alone. Secondly, even if the lack of independence issue had stood alone, it is not clear how critical was the fact that not only were the judges institutionally lacking in independence and impartiality, but there was evidence that they were in fact influenced, decisively so, by what Colonel Quadafi said both in public and in private.[89]The second UK authority on which Mr Fitzgerald places reliance is Brown and others v Government of Rwanda [2009] EWHC 770. This was an appeal by four persons who were ordered to be extradited to Rwanda to face trial for genocide. Their principal ground of opposition to extradition was that they would not receive a fair trial. The Divisional Court (Laws and Sullivan LJJ) applied the flagrant denial of justice test. At para 31, the court noted the concession made on behalf of the receiving state (Rwanda), a concession which the court said was “plainly right”, that “if the appellants were brought before a tribunal that was not impartial and independent, that would indeed constitute a flagrant breach of their rights under Article 6; and this is a large dimension in the case the appellants seek to make. In our judgment, nothing turns on the epithet “flagrant” in these appeals’ particular context if the appellants’ whole case on fair trial, or the want of it, is substantially established; for if it is, a flagrant violation will be made out.”[90]In a detailed judgment, the court considered first whether, if they were extradited, the appellants would suffer a real risk of a flagrant denial of justice by reason of their likely inability to adduce the evidence of supporting witnesses. Having reviewed the material, at para 66, they concluded that there was such a risk.[91]They then considered whether there was a real risk of a flagrant denial of justice by reason of the fact that the High Court of Rwanda was not independent and impartial. Having reviewed a good deal of expert evidence and evidence of a specific incident of governmental interference with the judiciary, the court concluded at para 121: “We have reached a firm conclusion as to the gravity of the problems that would face these appellants as regards witnesses if they were returned for trial in Rwanda. Those very problems do not promise well for the judiciary’s impartiality and independence. The general evidence as to the nature of the Rwandan polity offers no better promise. When one adds all the particular evidence we have described touching the judicial system, we are driven to conclude that if these appellants were returned there would be a real risk that they would suffer a flagrant denial of justice”.[92]We observe that the court’s conclusion that there was a real risk of a flagrant denial of justice was not based on the simple proposition that lack of judicial independence and impartiality would of itself involve a flagrant denial of justice. The court adopted a more calibrated approach than that. In assessing the seriousness of the lack of independence and impartiality, they took into account the fact that there was evidence of actual governmental interference in particular cases. Furthermore and in any event, it is not at all certain that the lack of independence and impartiality of the judiciary in Rwanda was a decisive factor in the court’s overall conclusion stated at para 121. It is clear that the lack of independence and impartiality was not the only feature of the Rwandan justice system which led the court to its overall conclusion.[93]In our judgment, Mr Fitzgerald seeks to place a weight on Brown which it cannot bear. It does not purport to state any general principle. It is no more than an example of a case where the high threshold of “flagrant denial of justice” was satisfied on the particular facts of the case having regard to the situation likely to face persons in Rwanda accused of genocide. Conclusion on whether the claimant’s conviction was the result of a flagrant denial of justice by reason of the court’s lack of independence and impartiality.[94]We can now return to express our conclusions on this central issue. There is no doubt that a conviction by a court which is not independent and not impartial involves a breach of article 6. Article 6(1) provides:
“In the determination of….any criminal charge against him, everyone is entitled to a fair and public hearing….by an independent and impartial tribunal established by law….”
It has been said by the ECtHR many times that “in order to establish whether a tribunal can be considered as “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence”: see, for example, Bryan v United Kingdom (1996) 21 EHRR 342, para 37 and Findlay v United Kingdom (1997) 24 EHRR 221, para 73. It is also well established in the case law of the ECtHR that there are two aspects to “impartiality”. First, the tribunal must be subjectively impartial, that is no member of the tribunal should hold any personal prejudice or bias. Secondly, the tribunal must be impartial from an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect: see, for example, Puller v United Kingdom (1996) 22 EHRR 391, para 30.[95]The independence of a court has often been recognised as a fundamental characteristic of a court. Thus, for example, in De Wilde, Ooms and Versyp (1971) 1 EHRR 373, at para 78 the court said:
“It is true that the Convention uses the word “court” (French “tribunal”) in several of its Articles. It does so to mark out one of the constitutive elements of the guarantee afforded to the individual by the provision in question….In all these different cases, it denotes bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and of the parties to the case…..”
[96]But the issue in the present case is not whether the conviction of the claimant involved a breach of her article 6 rights or denial of justice. It is whether she suffered a flagrant breach of her article 6 rights or a flagrant denial of justice. More particularly at this stage of the argument, the issue is whether the conviction amounted to a flagrant denial of justice by reason of the lack of independence and impartiality of the court by which the claimant was convicted.[97]It seems that the test “flagrant denial of justice” was first propounded by the ECtHR in Soering at para 113. The court there said that it did not exclude the possibility that an issue might exceptionally be raised under article 6 by an extradition decision where the fugitive has suffered or risks suffering a flagrant denial of justice in the requesting state (a non-signatory to the ECHR). That is the test that has been applied in subsequent cases as we have seen. Although the ECHR does not require the Contracting Parties to impose its standards on non-signatories to the ECHR, nevertheless there are some breaches of the ECHR which are so egregious or flagrant that, exceptionally, a Contracting Party may not do anything which exposes a person to a real risk of such a breach in a non-signatory state. Thus, a Contracting Party may not deport or extradite a person to a non-signatory state if there is a real risk that he or she will suffer a flagrant denial of justice in that state.[98]As we have seen, this same test of flagrant denial of justice has been applied by the ECtHR in the wholly different context of international co-operation in the administration of justice by enabling persons who have been convicted and sentenced in country A (a non-signatory state) to serve their sentences in country B (a signatory state). In Drozd, the ECtHR explicitly applied the Soering test in this context. The rationale for setting the bar as high as it was set in para 110 of Drozd was that to allow a person convicted in country A to assert that his conviction was in breach of article 6(1) and to claim on that account that his or her detention in country B is in breach of article 5(1) would “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”.[99]It is a striking fact that there is no case of which we are aware in which this test has been successfully invoked in any context in relation to article 6 on the grounds of lack of independence and impartiality of a court. We recognise that judicial independence and impartiality are cornerstones of a democratic society and that their absence will without more involve a breach of article 6. But we cannot accept that lack of judicial independence and impartiality will necessarily involve a flagrant denial of justice or the “nullification or destruction of the very essence of the right guaranteed” by article 6. Whether the lack of independence and impartiality has that effect must depend on the particular facts of the case, examined critically as a whole. Regrettably, there are many states throughout the world where judges are less independent and less impartial than they are in the UK and other democratic societies which are fully committed to the rule of law. But even where the judiciary are not fully independent and impartial, it is possible for a trial to take place which does not involve the complete nullification or destruction of the very essence of the right guaranteed by article 6.[100]We turn, therefore, to consider the alleged lack of independence and impartiality of the Lao court which convicted the claimant, having regard to her trial as a whole. There is little generic evidence that the results of trials are dictated or even influenced by the executive. It is true that the US Human Rights Report 2008 stated that in previous years, senior government and party officials influenced the courts, but the report said that no such cases had been reported during the year (of 2008). It is also true that there is evidence that judges usually decide cases in advance of the hearing, so that there is a general perception that attorneys cannot affect court decisions. But that does not necessarily connote that the courts are lacking in independence. The fact that courts usually base their decisions on the results of the police or prosecutor’s investigation reports does not prove that the courts are influenced by the police or the executive. This is readily explicable by the fact that the Lao system is inquisitorial.[101]Moving from the general to the particular, although there were shortcomings in the process, we cannot accept that any of these was necessarily or probably attributable to or indicative of lack of independence or impartiality on the part of the court. There are a number of features of the claimant’s case which are similar to those in the case of Mr Othman and which led SIAC to conclude that he was not at risk of a flagrant denial of justice: see [84] above. The trial took place within a legally constructed framework in which the court system, the procedural rules and substantive offences were clearly and satisfactorily defined: see [19] to [31] above. The claimant was present at the trial and had the benefit of an interpreter. The trial was held in public and was reported. It was witnessed by approximately 60 observers, including members of the United Nations, universities, Lao nationals from the justice and policy departments, many journalists (including western reporters). According to the claimant’s witness statement, the proceedings were broadcast live on Lao television. The claimant was represented by a lawyer at public expense. He knew what the charges were and was able to and did put forward the claimant’s defence that she was acting under duress and invoked article 21 of the Code. He was able to call the claimant to give evidence. At the close of the proceedings, she was given an opportunity by the court to make a statement. An appeal was available. Perhaps most important, there was no evidence that the judges had been chosen for this particular case because they were likely to convict or that they were “leaned on” by the executive.[102]One of the points relied on by SIAC in Othman as showing that there was no risk of a flagrant denial of justice was that reasons would be given by the Jordanian court for its decision. The defence of duress or necessity lay at the heart of the present case. The claimant admitted being in possession of the drugs. If her article 21 defence was rejected, it was inevitable that she would be convicted. Mr Fitzgerald submits that the court failed to give any reasons for rejecting her defence and contends that this suggests that the court was not acting independently and impartially.[103]We accept the submission of Mr Strachan that, by stating that they found that the claimant “deliberately took the heroin from other people” and “The Defendant had intention to transport the heroin to Sydney” (emphasis added), the court indicated that they were rejecting the article 21 defence. It is true that, by the standards of our courts, the reasoning is wholly inadequate. But many jurisdictions do not require judicial decisions to be supported by reasons as the UK courts do. More importantly, the inadequacy of the reasons given by the Lao court does not even arguably suggest that the court was not independent or impartial. The court could have given brief reasons for rejecting the article 21 defence even if its independence and impartiality had been completely compromised. In short, the inadequacy of a court’s reasons says nothing about whether it is acting independently and impartially in reaching its decision.[104]Mr Fitzgerald submits that there is evidence to support the likelihood of executive interference in the judicial process in the present case. He relies on the following facts.(1) It is likely to have occurred here in view of the high profile nature and the active involvement of government officials at every stage.(2) There is a statement of the Lao government spokesman reported in the Mail Online on 10 May 2009 that “she must testify in court that she was not raped in prison in order to escape the firing squad” and the other evidence about this to which we have already referred.(3) There are the statements made to Ms Morris on 12 May that “the sentence has been finalised” and “the case has been finalised” as suggesting that the outcome of the trial had been determined before the trial date had been fixed.(4) The Lao government was said by the FCO on 27 July 2009 to have made negotiations for repatriation “tricky as the Lao government kept moving the goalposts” with respect to the fine.[105]We do not consider that these points, individually or cumulatively, show that the executive is likely to have interfered with the decision of the court to convict the claimant. As regards (1), it is true that this was a high profile case. But there is no evidence that the executive was more likely to seek to influence the court in high profile cases than in any other case. As regards (2), the statement attributed to the government spokesman is not evidence that the executive would influence the court’s decision. It shows that the government was sensitive to the possible suggestion that the claimant’s pregnancy had been the result of a rape while she was in custody and that it was willing to apply unacceptable pressure on her to dispel this suggestion. But that is not proof that the government would dictate or even seek to influence the court in reaching its decision on whether or not to convict her.[106]As regards (3), Alan Shaw says in his witness statement that he spoke to the British Vice Consul who was present during the meeting of 12 May. Mr Shaw says that the Vice Consul said that there was no official interpreter in the room during the meeting, so that it was only possible to obtain an unofficial translation of what was being said. The Vice Consul does not recall hearing the Lao authorities saying that anything had been “finalised”. Mr Shaw says that on 14 May, an official of the Lao Ministry of Foreign Affairs told consular staff from the British Embassy in Bangkok that the claimant’s trial would not commence until there was clarity over who was the father to her unborn child. In view of the fact that there was no official interpreter present, we should be cautious about what was said on 12 May. It may well be that something was said about something having been “finalised”. But as Mr Strachan points out, that could be understood as a reference to the trial date having been fixed or the submissions having been lodged with the court. It may be that the government played a part in fixing the trial date. That would be considered to be quite unacceptable in our system, but it does not lead to the conclusion that the government influenced or dictated the court’s decision at the trial.[107]As regards (4), the evidence of Mr Shaw is that the UK Foreign Office Minister, Chris Bryant was told that the Lao authorities insisted that the fine be paid at least in part before the Lao government would consent to the claimant being transferred to serve her sentence in the UK. Article 4 (i) of the PTA provides that unless the Contracting Parties otherwise agree, a sentenced person may not be transferred unless he has made full payment of the fine “according to the judgment of the court in the transferring Party”. Thus, the Government of Laos was doing no more than exercising its rights under the PTA. In any event, even if article 4(i) did not exist, we do not see how the fact that the government was insisting on payment of part of the fine before agreeing to the claimant’s transfer sheds any light on the question whether it is likely to have interfered with the trial process or influenced the result of the trial.[108]For all these reasons, therefore, we conclude that to the extent that the court lacked independence and impartiality, this did not of itself give rise to a flagrant denial of justice.

Other factors relied on in support of flagrant denial of justice

[109]Apart from the alleged lack of independence and impartiality of the court, Mr Fitzgerald identifies other features of this case which, taken together, he submits shows that the claimant suffered a flagrant denial of justice.[110]First, the claimant had no legal representation at the key points in the procedure, was refused a lawyer when first arrested on 5 August 2008 and thereafter whenever questioned, and did not have a lawyer to represent her for the nine months between the time of her arrest in August 2008 and May 2009. During this period, she was threatened and made to sign statements, copies of which have not been provided to those representing her in the present proceedings.[111]Secondly, she was frequently threatened and intimidated into making statements in the most appalling circumstances. In the result, Mr Fitzgerald submits, it is highly likely that some of the incriminating statements that she signed failed to include any reference to her defence or her key mitigation, precisely because she was intimidated into signing statements against her will without a lawyer or interpreter to protect her rights. Moreover, the very fact of the admission of statements obtained in this oppressive manner rendered the trial fundamentally unfair and tarnished by inhuman treatment. In support of this last submission, Mr Fitzgerald relies on Jalloh v Germany (2007) 44 EHRR 32 and Gafgan v Germany (Application no 22978/05).[112]Thirdly, she was denied a proper opportunity to prepare her case, was denied private meetings with her lawyer and the notes which she had prepared were deliberately destroyed by the Lao authorities.[113]Fourthly, she had incompetent legal representation by a lawyer who was not independent of the executive. In support of this submission, Mr Fitzgerald relies on the following.(a) Mr A requested and was paid $350 by Reprieve in order to facilitate Ms Morris’s access to the claimant and demanded other monies from the claimant’s mother: we make it clear that Reprieve considered this most unethical, but made the payment only because the claimant’s life was at stake.(b) Reprieve were subsequently told by a confidential source that Mr A was “nothing but a spy for the Lao Public Prosecutor [who] will run and tell them everything you say and do, and everything you know about her”. This is consistent with the evidence contained in the expert’s report on Lao obtained by the Secretary of State that “the Lao Bar Association is currently not independent from the Government and falls under the direct control of the Ministry of Justice”.(c) Mr A failed to file an application for a mental health evaluation of the claimant, an application to the Lao court under the UN Convention on the Rights of the Child and a written deposition of the defence case, all documents that had been prepared by Reprieve.[114]As regards the first point, the fact that the claimant only had the most limited accessto Mr A is most regrettable and would certainly not be regarded as acceptable in the UK. But Mr A was able to present a written submission and to supplement his written material with oral submissions so as to deal with the issues in the case. In particular, he was able to advance the claimant’s defence of necessity or duress. This was not a complicated case. The claimant admitted being in possession of the drugs. It is true that there was an issue as to whether she had the drugs in a suitcase or on her person, but it is difficult to see how anything would turn on that. The real issues were(i) whether her defence of necessity or duress would succeed and(ii) if it did not, what sentence would be imposed having regard to the mitigation that was available to her. We accept that the limited access that the claimant was afforded to Mr A was unjust and in a domestic context would almost certainly amount to a breach of article 6. But we are not persuaded that it was a flagrant denial of justice. She did have sufficient access to Mr A for him to appreciate the nature of her defence and mitigation and for him to be able to put it before the court. This case comes nowhere near amounting to a nullification or destruction of the very essence of the right guaranteed by article 6.[115]As regards the second point, we acknowledge the existence of the principle that the admission of important evidence that has been obtained by torture or ill treatment can and usually will of itself render a trial unfair. But we do not know what admissions the claimant made in the statements which she signed under duress. She has never denied being in possession of the drugs. We do not know what, if anything, she said about her article 21 defence. There is nothing in the judgment of the court to suggest that its decision was based on the content of the claimant’s statements (beyond the uncontroversial admission that she was in possession of the drugs). It is deplorable that the claimant should have been made to sign statements in the circumstances that she describes. But we cannot accept that a flagrant denial of justice occurred as a result.[116]As regards the third point, even if we accept the complaint that is made, for the same reasons as those which we have just given in relation to the first two points, it did not give rise to a flagrant denial of justice.[117]As regards the fourth point, we take each of the three complaints summarised at [114] above in turn. As to (a), it is, of course, deplorable by our standards thatMr A should have sought payment in order to facilitate Ms Morris’s access to the claimant and payment from the claimant’s mother. But this does not mean that Mr A failed to represent the claimant properly. As to (b), it is said that Mr A was acting on behalf of the prosecution and the executive because all members of the Lao Bar Association “receive some direction from the Ministry of Justice”. Once again, the argument founders on the high bar set by the flagrant denial of justice test. There can be no doubt that Mr A did represent the claimant at the trial. He put forward her defence and spoke for 20 minutes in support of her case. In an inquisitorial system where the court will have had all the written material in advance (including Mr A’s written submissions), Mr A was able to put forward her case. At the very least, we find it impossible to hold that the extent to which he was able to present her case was so attenuated that the claimant suffered a nullification or destruction of the very essence of her right to a fair trial.[118]As regards (c), even if Mr A failed to file these documents, this could not justify a conclusion that there had been a flagrant denial of justice. It is to be observed that most of this written material went to the question of penalty rather than whether the claimant was guilty or not.[119]Finally, we should mention the case of Mr and Mrs Danes: see [72] above. Mr Fitzgerald did not place much reliance on it in his oral submissions to us. In our judgment, he was right not to do so. The appalling experiences described by Mrs Danes were approximately 8 years earlier than the claimant’s trial. The US Department of State 2008 report suggests that caution should be exercised in relying on evidence which is several years old: see [68] above.

Conclusion on the judicial review and habeas corpus claims

[120]For the reasons that we have given, the factors relied on by Mr Fitzgerald do not support the conclusion that the claimant’s conviction and sentence were the result of a flagrant denial of justice.

A different argument

[121]Encouraged by Tugendhat J, Mr Strachan advanced a different and more fundamental reason why the claim should be dismissed. This is that, by consenting to her transfer to the UK to serve her sentence, the claimant waived any breach of article 5 of the ECHR that her detention in the UK would otherwise have entailed. Since the argument was not developed and it is not necessary for us to express any view about it, we do not do so. But we think it right to record it.[122]In ex p Read at p1047 Lord Bridge said of the RPA that:
“It is fundamental that in every case before transfer can be effected the sentencing state must have agreed to the transfer and the prisoner himself must have consented to it. Elaborate provision is made to ensure that the prisoner, before giving his consent, shall have been fully informed as to the effect which the transfer will have in terms of the sentence which he will be required to serve in the United Kingdom on his return: section 1(1), (4) and (5).”
[123]It is to be noted that in Willcox v Secretary of State for

Justice [2009] EWHC 1483 (Admin), at para 30 Ouseley J said:

“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.”
[124]At para 37, Ouseley J said:
“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.”
It seems to us, however, that since a person can waive a breach of article 6 in some circumstances, it is at least arguable that it is possible in principle to waive a breach of article 5 where the breach of article 5 is based on the existence of a breach of article 6. In Drozd the ECtHR did not have to consider the effect of consent, because no consent by the prisoners was required (or had apparently been given) for the transfers that had been made in that case. The minimum term or tariff[125]The claimant is a “transferred life prisoner” within the meaning of section 273(2) of the Criminal Justice Act 2003 (“the 2003 Act”). This court, is therefore, required to make a “relevant order” within the meaning of section 273(3)(b), which is “in any [case other than one falling within section 273(3)(a)], an order under subsection (2) or (4) of section 82A of the [Powers of Criminal Courts] Sentencing Act [2000] (“the Sentencing Act”)”.[126]We should make it clear that the Secretary of State for Justice is not a party to the reference for an order under section 273 of the 2003 Act. We heard submissions from Mr Fitzgerald only. It is convenient to give our decision and our reasons in the judgment we have just given on the judicial review and habeas corpus applications.[127]Section 82A (4) of the Sentencing Act provides for cases in which the early release provisions should not apply. The claimant’s case is clearly not such a case. In effect, she was convicted for being a courier. In our courts, couriers who are found with quantities of drugs such as those found on the claimant are almost always sentenced to determinate terms of custody. Section 82A(2) provides that the court shall, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 shall apply to the offender as soon as she has served the part of her sentence which is specified in the order.[128]Section 82A(3) provides:
“The part of his sentence shall be such as the court considers appropriate taking into account--- (a) the seriousness of the offence…; (b) the effect of any direction which it could have given under [section 240 of the 2003 Act] below (crediting periods of remand in custody)….; and (c) the early release provisions as compared with [section 244 of the 2003 Act]” (a) the seriousness of the offence…; (b) the effect of any direction which it could have given under [section 240 of the 2003 Act] below (crediting periods of remand in custody)….; and (c) the early release provisions as compared with [section 244 of the 2003 Act]”
[129]The judgment of the Laotian court records that a laboratory test was performed on the substance found on the claimant on her arrest, and that it was determined that it was heroin. There were 68 tubes weighing 680 grams. But there was not determination or evidence of its purity.[130]The sentencing guidelines relating to class A drugs in Aranguren 99 Cr App R (S) 347 relate to the weight of pure drug, rather than street value. According to these guidelines, where the weight of the drugs at 100% purity is of the order of 500 grams or more, sentences in the range of 10 years upwards are appropriate for a determinate sentence. Since there is no evidence of purity in the present case, Mr Fitzgerald submits that we should not sentence of the basis that there were the equivalent of more than 500 grams at 100% purity. We agree. In our judgment, the correct starting point of a notional determinate sentence is 7 years.[131]It is often said that personal mitigation counts for little in sentencing for offences of this kind. But there are a number of mitigating factors in the present case (some exceptional) which in our judgment should be reflected in setting the tariff.[132]First, we accept the evidence of the claimant as to the threats and coercion which led her to carry the heroin. There was no challenge to that evidence before us. We assume that her defence of necessity or duress failed because the court considered that she ought to have surrendered the heroin to the authorities when she arrived at the airport, instead of attempting to board the aircraft. Subject to her defence of necessity or duress, she admitted everything that was alleged against her. She co-operated with the prosecutors and provided them with details of John and JJ. We observe that in Robinson [2004] 2 Cr App R (S) 72, two 17 year old couriers had been arrested with the equivalent of 98.8 grams of pure cocaine. Their defence was duress in terms that were similar to the claimant’s defence in the present case. It failed because they had an opportunity to hand themselves in at the airport before boarding the plane in Jamaica. The judge passed a sentence of 4 years making no allowance for the threats, but without making a finding that they had not been under threats either. The CACD held that the judge should have reduced the sentence to reflect the coercion. They added a “marginal reduction” of 6 months to reflect the coercion. Similarly, in Hynes [2009] 1 Cr App R (S) 90, the CACD dismissed an appeal where the judge had reduced a sentence of 7 years to 5 years to take account of the coercion in that case, where the appellant had attempted to throw a bag of heroin over the perimeter fence of a prison. The CACD considered that the discount was adequate.[133]Secondly, as we have said the claimant has a very troubling family background, including a documented history of mental health problems, self-harm and attempted suicide as well as a history of being physically and sexually assaulted by men. We have seen a psychological report dated 30 April 2009 which concludes that the claimant is in need of psychiatric and other medical assistance, both immediately and in the long term.[134]Thirdly, the claimant was in custody in Laos, first on remand and then after conviction for a total of 492 days (303 days before trial and the balance after trial) in appalling conditions. In addition, for most of that time, she was living with the threat of a death sentence hanging over her.[135]Fourthly, the claimant was pregnant at the time of her arrest and gave birth to a child on 31 August 2009, which was less than one month after her transfer to the UK to serve her sentence here. Subject to the sentence imposed by this court, the arrangements made by the Prison Service would require her to be separated from her baby when the baby is between 6 and 9 months of age. In Attuh-Benson [2005] 2 Cr App R (S) 11, the appellant was a drugs courier in possession of 787 grams of cocaine. She was a mother from Ghana who was 4 months pregnant on arrest. There were death threats to her husband and children in Ghana. Following conviction, her sentence was reduced on appeal from 10 years to 8 years imprisonment.[136]Fifthly, she is still very young and was only 19 at the time of the offence.[137]Finally, we take into account the fact that a life sentence (with the life-time liability to recall from licence) bears more harshly on the claimant than the determinate sentence which she would almost certainly have received if she had been sentenced in the UK.[138]Taking a broad view of all these mitigating circumstances, we think that the appropriate determinate sentence is 3 years. By reason of section 244 of the 2003 Act, if she had been sentenced to a term of 3 years, she would have been released on licence after serving one-half of her sentence. Accordingly, the 3 years must be reduced to 18 months.[139]Accordingly, we set the minimum term at 18 months.

Overall conclusion

[140]We are in no doubt that, by the standards of our justice system, the claimant was treated unjustly in Laos. If she had been tried and convicted in that way in our courts, a complaint that her rights under article 6 of the ECHR had been violated would surely have succeeded. But her claim that she has been detained in the UK unlawfully cannot succeed unless it is shown that she suffered a flagrant denial of justice in Laos. For the reasons that we have given, she has not been able to satisfy this high test. The test is rightly set very high. That is because it is important not to jeopardise or undermine the treaties for the repatriation of prisoners which the UK now has with many countries, so that those who are convicted abroad can serve their sentences here. If persons who have been convicted and sentenced abroad and have procured their transfer to the UK were easily able to obtain their liberty by challenging the fairness of their convictions, there would be a grave danger that these important treaties would be set at nought. That would be highly regrettable.

Cited in 4 later judgments