Shaheen, R (on the application of) v Secretary of State for Justice

A prisoner has no automatic right to transfer under the Council of Europe Convention on the Transfer of Sentenced Persons. The sentencing State retains an unqualified discretion, subject to Convention rights, the Human Rights Act 1998 and Wednesbury principles.

When reviewing a refusal based on Article 8, the court should conduct careful scrutiny and allow only a modest area of discretionary judgment where it is competent to assess the risk of reoffending. Article 8 does not impose an exceptional-circumstances test. The court must assess whether the interference with family life is proportionate, bearing in mind that severe restrictions on family contact are an inevitable consequence of lawful imprisonment.

The claimant, a British citizen resident in the Netherlands with his Dutch wife and children, was serving a 16-year sentence in England for importing diamorphine. The Netherlands agreed to receive him under the Council of Europe Convention on the Transfer of Sentenced Persons, but the Secretary of State refused consent.

The refusal was based principally on the claimant’s unrestricted right to return to the United Kingdom, the likely reduction in sentence on transfer, and the risk that he would return and reoffend. The Secretary of State accepted that the refusal interfered with the claimant’s Article 8(1) family-life rights. The issues were whether that interference was proportionate, whether the decision-maker was entitled to the relevant risk assessment, and whether the claimant had been treated unfairly compared with his co-accused.

1. Discretion and standard of review. The Convention gives the sentencing State an unqualified discretion to consent or refuse consent to a transfer. The decision remains subject to the Human Rights Act 1998 and Wednesbury unreasonableness. The court’s role is supervisory, not appellate.
2. Discretionary judgment. The court was competent to assess the risk of reoffending and therefore would not accord the Secretary of State a wide area of judgment. Nevertheless, a modest area of discretionary judgment was appropriate because the decision involved penal and immigration policy. That margin required careful judicial scrutiny.
3. Risk assessment. The Secretary of State’s repeated statement that the claimant had shown a willingness to travel from the Netherlands to commit crime in the United Kingdom clearly conveyed an assessment of a real or significant risk of renewed offending. That assessment was reasonably open to him, having regard to the seriousness of the index offence, the claimant’s previous convictions and criminal history, and the fact that his age and medical conditions had not prevented the index offence.
4. Article 8 proportionality. The claimant’s family-life rights were engaged, but imprisonment inevitably and seriously restricts family contact. The refusal to transfer had to be assessed in that context. The Secretary of State was entitled to conclude that the public interest in preventing further serious offending outweighed the family-life considerations.
5. Exceptional circumstances. The Strasbourg material did not establish an independent legal requirement that a prisoner must show exceptional circumstances before succeeding under Article 8. The result depended on the proportionality assessment and the lawfulness of the risk assessment.
6. Co-accused. The Secretary of State was entitled to distinguish the claimant from his Dutch co-accused. The co-accused was subject to a deportation order and lacked the claimant’s automatic right to return to the United Kingdom. The difference in treatment was rational and fair.
7. The application for judicial review was dismissed.

First-instance judicial review proceedings. No earlier decision is stated in the judgment.