Regina v Secretary of State for the Home Department, ex parte Ellaway; Queen's Bench Divisional Court (Lord Justice Saville, Blofeld J); 8 February 1996

Where a prisoner has been sentenced to imprisonment of four years or less by a foreign court, the Home Secretary is not required to specify, in the warrant for the prisoner's transfer to this country to serve the balance of the sentence, the particular proportion or part of his sentence already served for the purpose of calculating the prisoner's release on licence.

The Divisional Court dismissed an application for judicial review of the Home Secretary's decision fixing the applicant's earliest release date from prison.

The applicant was sentenced to three and a half years' imprisonment (1,277 days) by a German court for evading import duty. He was repatriated to Britain under the Convention on the Transfer of Sentenced Persons of 1983 as effected through the Repatriation of Prisoners Act 1984 as amended. The warrant issued by the Home Secretary providing for the transfer of the applicant to the United Kingdom disclosed that he had served 138 days in custody on remand before sentence. He served a further 429 days after sentence before transfer. He was credited to 283 days' remission. The warrant deducted the figure of 850 days from the total 1,277 days leaving a balance of 427 days to be served on transfer to England.

Under the Criminal Justice Act 1991 a long-term prisoner sentenced to four years or more, might, if recommended by the parole board, be released on licence after he had served half his sentence and a prisoner sentenced to less than four years was entitled to mandatory release on licence after serving half his sentence. Paragraph 2(2) of the Schedule to the 1984 Act provided that, in relation to a prisoner's release on licence, the period of time served prior to repatriation could be specified in the warrant.

The Home Secretary fixed the date when the applicant had served half the 427 days as his earliest release date. The applicant applied for judicial review of that decision on the ground that under paragraph 2(2) of the Schedule to the 1984 Act, the actual days served in Germany (567 days) should have been specified as the period to be taken into account, so that he would have to be released once he had completed half his total sentence, that is half 1,277 days which was 628 days and he would have only 71 days to serve in England; instead he had to serve half of 427 days, that is 213 days.

Martin Westgate (Stephens Innocent) for the applicant; James Turner (Treasury Solicitor) for the Home Secretary.

Mr Justice Blofeld said that in Germany the applicant was only entitled to remission of one third, whereas in England he was entitled to half remission, so he was clearly better off by being transferred to England.

The Home Secretary submitted there was a distinction between short- and long-term prisoners. The short-term prisoner had a mandatory release date whereas the long-term prisoners, although they had a mandatory release date after they completed two-thirds of their sentence, could still if the parole board so recommended be released after one half of their sentence. That difference had caused the Home Secretary to differentiate between short- and long-term prisoners.

His Lordship accepted the submission that Parliament had drawn a distinction between short- and long-term prisoners. It was therefore perfectly proper for the Secretary of State to do so. The 1984 Act had taken into account the provisions of the Convention and so had the Home Secretary in dealing with this matter.

The fact that there was a different regime in England as opposed to Germany did not indicate a breach of the Convention. When the Convention used the words "sentence", as far as the administering state or state to which the prisoner might be transferred was concerned, it meant the balance of the sentence and not the whole of the sentence from the moment when it was passed by the sentencing state.

The Home Secretary had paid due regard for the provisions of the Convention and had applied his discretion in a reasonable manner.

Lord Justice Saville agreed.

Ying Hui Tan, Barrister