Bristow, R (on the application of) v Secretary of State for Justice & Anor

Prisoners transferred to the United Kingdom remain subject to the domestic early-release scheme applicable when the transfer occurs. For automatic release, the relevant period is ordinarily the balance of the foreign sentence remaining after transfer, rather than the whole sentence imposed abroad. This preserves the integrity of the foreign sentence and avoids immediate release where more than half the sentence has already been served abroad.

A prisoner who is ineligible for parole is not in an analogous position to a prisoner eligible for discretionary release. A difference in automatic-release treatment may be justified where the prisoner transferred after legislative changes had abolished parole for the relevant category and had no expectation of parole eligibility.

The claimant had been sentenced in Thailand and transferred to a British prison under the Repatriation of Prisoners Act 1984. Following changes to the domestic early-release regime, his automatic release date was calculated by reference to half of the balance of his sentence remaining after transfer.

He alleged discrimination contrary to Articles 14 and 8 of the European Convention on Human Rights, comparing himself with prisoners convicted of sexual or violent offences who remained eligible for parole. The court considered whether the two groups were in an analogous situation and whether the difference in treatment was justified.

1. The application was refused. The claimant was bound by R (Clift) v Home Secretary [2007] 1 AC 484, under which a long-term prisoner had no other status for the purposes of Article 14. The court nevertheless considered the substantive comparison advanced on his behalf.
2. Under the Repatriation of Prisoners Act 1984 and its Schedule, a warrant authorises detention for the balance of the foreign sentence remaining after transfer. The domestic early-release provisions apply to that balance. Automatic release is therefore calculated by reference to the period remaining when the warrant takes effect. This approach preserves the authority of the foreign sentence and prevents a prisoner who has already served more than half the sentence abroad from being released immediately.
3. The calculation for parole is different. Parole is discretionary and depends on whether continued detention is necessary because the prisoner remains dangerous. Eligibility has generally been calculated by reference to half of the total foreign sentence, so that repatriated prisoners are not disadvantaged compared with domestic prisoners subject to parole. The court applied the reasoning in R v Secretary of State for the Home Department, ex parte Oshin [1999] WL 114270 and R v Secretary of State for the Home Department ex parte Ellaway [1999] EWHC J020.
4. The claimant was not in an analogous position to sexual or violent offenders because he was ineligible for parole. Nor did he have the expectation of parole eligibility enjoyed by prisoners who had agreed to transfer before the 2008 harmonisation and were consequently given a special automatic-release entitlement.
5. The difference in treatment was justified. The claimant delayed transfer and was accurately informed of the applicable consequences. A prisoner who delays requesting repatriation assumes the risk that the domestic early-release scheme may change before transfer. The claim was accordingly refused.