Bucpapa v Secretrary of State for Justice

The Secretary of State has a wide, fact-sensitive discretion whether to consent to the transfer of a prisoner under an international prisoner-transfer arrangement. The discretion must nevertheless be exercised rationally and on a properly informed basis. It is irrational to rely heavily on an earlier possible release in the receiving state where that consequence is the inevitable result of the transfer scheme and the decision-maker has not been properly informed of the statutory and treaty framework producing it. A general principle of consistency does not require an individualised decision-maker to conduct an extensive comparison of other cases.

The claimant, an Albanian national serving a 30-year sentence in the United Kingdom, challenged the Secretary of State’s refusal to transfer him to Albania to serve the remainder of his sentence. The Albanian court had converted the sentence to 15 years because the transfer arrangements prohibited aggravation of the sentence and Albanian law did not provide equivalent automatic release arrangements.

The claimant alleged irrationality and unlawful inconsistency. Permission had been refused on separate ultra vires and Article 8 grounds. The central issues were whether the Secretary of State had properly understood the effect of the transfer arrangements and whether consistency with earlier Albanian transfers required a different decision.

1. Claim allowed. The refusal decision was quashed.
2. The Convention and the bilateral Prisoner Transfer Agreement confer no legal right on a prisoner to transfer. The decision whether to consent rests with the contracting states and is subject to the ordinary public-law constraints of rationality and Convention compliance. The Secretary of State has a wide discretion, to be exercised on the individual merits of each case.
3. The court accepted that the primary policy purpose of the Repatriation of Prisoners Act 1984 is the humane and desirable objective of enabling prisoners sentenced for crimes committed abroad to serve their sentences within their own society. That purpose does not convert the discretion into an entitlement.
4. The material basis of the decision was the unusual severity of the offences and the possibility that the claimant might be released in Albania three years and nine months earlier than in the United Kingdom. The submission failed adequately to explain that the Albanian court’s 15-year conversion was required by the non-aggravation principle in Article 7(2) of the bilateral agreement, given the different release systems. The potential reduction was therefore an inevitable consequence of the agreement’s operation.
5. Although the potential reduction in time served could be relevant, it was irrational in the circumstances to rely so heavily upon a consequence produced by the transfer scheme without properly informing the Minister of its basis. The submission also contained an inaccurate description of the claimant’s United Kingdom release position and omitted material information about previous transfers.
6. The consistency ground failed. Transfer decisions are highly fact-specific. A general principle that like cases should be treated alike does not require the Secretary of State to trawl through other cases or undertake an extensive comparative exercise. Different decision-makers may rationally reach different conclusions on materially similar facts.

First-instance judicial review claim. The court allowed the claim and quashed the Secretary of State’s decision dated 9 August 2016.