Neville, R (On the Application Of) v Secretary of State for Justice

A prisoner transferred to England and Wales is a transferred life prisoner only where, at the point of transfer, he is subject to an operative indeterminate sentence and is transferred to serve that sentence or its remainder. Earlier sentences superseded by a pardon or commutation do not satisfy the statutory definition.

Under the prisoner transfer arrangements, the transferring state determines the legal nature and duration of the sentence. The receiving state must enforce the current sentence identified by that state and must not substitute an historic sentence.

Different outcomes caused by the interaction of foreign sentencing law and domestic release rules are not, without more, arbitrary or discriminatory under the Convention.

The claimant was convicted and sentenced to life imprisonment in Thailand. Before his transfer to England and Wales, collective royal pardons and court warrants converted the sentence into a determinate term.

The Secretary of State therefore issued transfer warrants requiring him to serve a determinate sentence and refused to refer his case to the High Court under section 273 of the Criminal Justice Act 2003. The claimant sought judicial review, arguing that his original life sentence continued to make him a transferred life prisoner and that the refusal breached Articles 5, 6 and 14 of the ECHR.

The central issues were whether the statutory definition referred to the original or operative sentence at transfer, and whether Convention-compliant interpretation required a different result.

1. The claim was dismissed. The claimant did not satisfy either criterion in section 273(2) of the Criminal Justice Act 2003.
2. Section 273(2)(a) and (b) refer to the same sentence. The prisoner must have been subject to an indeterminate sentence when transferred and must have been transferred to England and Wales to serve that sentence or its remainder. The natural meaning of “transferred life prisoner” assists construction of the definition where its terms are ambiguous.
3. The relevant sentence was the operative sentence at the point of transfer, not the historic life sentence. The Thai court warrants, issued after the collective pardons, imposed or recorded determinate terms and directed the dates of release. The transfer warrants likewise required service of a determinate sentence.
4. Under the prisoner transfer agreement, Thailand retained exclusive jurisdiction over its judgments and sentences, and its determination of the legal nature and duration of the sentence was paramount. The Secretary of State and the court were not required or qualified to determine the constitutional or legal effect of the pardons under Thai law. They were required to act on the information supplied by Thailand.
5. The Convention arguments did not require a different interpretation. The detention retained a sufficient causal connection with the Thai convictions and was not arbitrary. Differences between the sentence served after transfer and the outcome that might have followed an English life sentence resulted from the interaction of lawful sentencing and release regimes, not arbitrary treatment. The claimant’s informed consent to transfer was also relevant.
6. Article 6 did not apply to amnesty procedures or proceedings concerned only with sentence reduction by a mathematical exercise. In any event, the Thai proceedings did not amount to a flagrant denial of justice.
7. The Article 14 complaint failed because the claimant was not in an analogous situation to a prisoner transferred while subject to a life sentence. In any event, the same rules were applied to him and any difference pursued legitimate prisoner-transfer aims by proportionate means.

First-instance judicial review proceedings. May J granted permission on the construction ground but refused permission for freestanding Convention grounds. The Divisional Court dismissed the claim.