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

A prisoner transferred to the United Kingdom under a prisoner-transfer agreement cannot ordinarily challenge the foreign sentence by seeking its conversion to an English sentence. The receiving state must refuse transfer where the foreign proceedings were not, in substance, a trial by a competent criminal court, or involved a flagrant denial of justice. That high threshold was not met by an irrebuttable statutory presumption affecting intent to supply, where the prisoner had a public and reasoned trial, was represented, and the essential possession and quantity were proved. Continued enforcement of the foreign sentence after a consensual transfer did not breach articles 3 or 5 of the ECHR. The agreement required continued enforcement, subject to the receiving state’s release provisions and applicable maximum penalties, rather than reconsideration of sentence.

The claimant, a British citizen imprisoned in Thailand for possession of heroin and ecstasy with intent to distribute, requested transfer to England under the 1990 bilateral Prisoner Transfer Agreement. The Thai law applied an irrebuttable presumption that possession above specified quantities was for disposal. The claimant argued that the resulting conviction and sentence involved a flagrant denial of justice, that enforcement was arbitrary, and that the sentence was grossly disproportionate contrary to articles 3 and 5 ECHR.

The Secretary of State maintained that the transfer complied with the Agreement and the Repatriation of Prisoners Act 1984, which required enforcement of the Thai sentence subject to English release law. The central issues were whether the foreign trial was sufficiently defective to prevent enforcement, whether the sentence could be reviewed after transfer, and whether continued detention breached the Convention.

1. Claim dismissed. The claimant’s consent to transfer did not prevent a challenge based on unlawful detention. If the foreign proceedings had been a flagrant denial of justice, the United Kingdom could not lawfully continue enforcing the sentence. Consent could not convert an invalid trial into a conviction by a competent court.
2. The threshold was exceptionally high. The relevant question was whether the proceedings amounted to a complete denial or nullification of the Convention right. The Thai proceedings were a trial by a properly constituted court, in public, before independent judges. The claimant was represented, evidence was received and evaluated, the court acquitted him of a more serious charge, and it gave a reasoned decision on conviction and sentence. The irrebuttable presumption materially affected the presumption of innocence and would have raised an Article 6 issue, but it did not nullify the trial or make the conviction a nullity.
3. The Prisoner Transfer Agreement required continued enforcement of the Thai sentence. Articles 5 and 6 preserved the transferring state’s jurisdiction over the conviction and sentence and bound the receiving state by their legal nature and duration. The words “as far as possible” did not authorise conversion or re-sentencing by reference to English standards. The receiving state could apply its own custody, remission and release provisions and the statutory maximum, but could not substitute an English sentence.
4. The Article 5 challenge failed. The difference between the consequences of a Thai determinate sentence and a hypothetical Thai life sentence, when interacting with English release rules, did not make detention arbitrary. Once the sentence was imposed by a competent court, its enforcement under the Agreement was not arbitrary.
5. The Article 3 challenge also failed. The relevant treatment by the United Kingdom was the claimant’s consensual transfer for continued enforcement of the Thai sentence, not the original imposition of that sentence. That humane and beneficial transfer could not be characterised as cruel, inhuman or degrading. In any event, proportionality could not be assessed as though the offence had been committed and sentenced in England. The nature of the offence, Thailand’s drug problem, its legislative policy, the claimant’s circumstances, amnesties and English release provisions were relevant.
6. The claimant’s consent was informed and real, although influenced by harsh prison conditions. Article 8 added nothing to the claim. The requested declaration requiring the Minister to revise the sentence was inappropriate and inconsistent with the Agreement.