Draft Repatriation of Prisoners (Jersey) Llaw, 201-
Report
BackgroundIntroduction
1. Although there has been a Repatriation of Prisoners Act in the United Kingdom since 1984 [ “the 1984 Act” ], this was never extended to Jersey and there remains no statutory foundation for the transfer of prisoners from Jersey to non-UK jurisdictions. Moreover, since that time, there have been a number of Conventions, both EU and Council of Europe, to help facilitate the transfer of sentenced persons between member states, again, none of which have been extended to Jersey.
2. This report covers the legislative background to this subject; the purpose and provisions of the Draft Repatriation of Prisoners (Jersey) Law, 201-; the practical implications of implementing the new law; and the financial and manpower implications.
Legislative Background
United Kingdom Legislation
3. Section 9(4) of the Repatriation of Prisoners Act 1984 [ “the 1984 Act” ] enabled Her Majesty, by Order in Council, to extend the 1984 Act to any of the Channel Islands, the Isle of Man or to any colony. Orders in Council were made in relation to the Isle of Man and the Overseas Territories, but not in relation to Jersey or Guernsey. There was some discussion in the 1990s on extending the Act, but the Committee of the day decided that there was a more pressing need at the time to put in place provision for the restricted transfers of prisoners within England and Wales to the UK through Schedule 1 to the Crime Sentences Act 1997. Restricted transfers to the UK means that prisoners who are sentenced in Jersey, but who serve their sentence in the UK, will serve it in accordance with the Jersey system for remission, ie: not exceeding one third off the full sentence. The Crime Sentences Act 1997is was extended to Jersey by the Transfer of Prisoners (Restricted Transfers) (Channel Islands and Isle of Man) Order 1998 [L.39/98]. However, this does not provide any legislative means by which Jersey can repatriate prisoners to non-UKother jurisdictions from which they might originate. To facilitate this, the preferred course is to enact domestic Jersey legislation, rather than to extend the 1984 Act. This is more consistent with the increasingly independent status of the Island.t. Moreover, Aan Order in Council would have to be drafted in the UK on instructions from Jersey and this is unlikely to be given thea high priority which is required. It is also preferable of retain control over our own statute book.
Council of Europe Convention
4. The United Kingdom is a signatory to two multi-party prisoner transfer agreements: the Council of Europe Convention on the Transfer of Sentenced Persons (1983) and the Commonwealth Scheme for the Transfer of Convicted Offenders (1990). It signed the Council of Europe Convention on 25 August 1983 and the Commonwealth Scheme on 27 June 1991.
5. The general principles of the Council of Europe Convention are that –
The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the Convention.
A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the receiving State in being transferred under the Convention.
Transfer may be requested by either the sentencing State or the receiving State.
6. A sentenced person may be transferred under the Convention only on certain conditions, amongst which are that the judgment must be final, the conduct for which the person was sentenced must constitute a criminal offence under the law of the receiving State, and the sentencing and receiving States must of course agree to the transfer. The receiving State must continue the enforcement of the sentence.
7. In addition to the multi-party arrangements to which the United Kingdom is a signatory, it has concluded around twenty[m1] bilateral prisoner transfer agreements with certain countries. The Department is currently researching the feasibility of either the possibility of having having certain agreements extended to Jersey.
, or negotiating similar agreements to those made with the United Kingdom government in the interests of consistency.
Additional Protocol
8. On 9 February 2009, the United Kingdom signed the Additional Protocol to the Council of Europe Convention on the Transfer of Sentenced Persons (1997). It was ratified on 17 July 2009 and entered into force on 1 November 2009. Among other things, the Additional Protocol stipulates that: “The consent of the sentenced person shall not be required to the transfer of the execution of the sentence.” This is applicable in two circumstances, the first of which is of particular interest to Jersey:
- Where the prisoner is to be deported at the end of sentence
- Where the prisoner has fled from the sentencing State to his/her State of nationality. This enables the prisoner to be arrested in his own country and for the sentence to be transferred and enforced in that country
9. Notwithstanding the above conditions, the draft Repatriation of Prisoners (Jersey) Law, 201- [hereinafter referred to as “the Law”], will not be confined within the limits of the Additional Protocol. Once the Law is in force, the way will be open to implement other more far reaching arrangements under which transfers may take place, with or without the consent of the prisoner. Indeed, the issue of consent is an important consideration and this has been further refined by an EU Framework Decision (see paragraph 11).
Jersey and the Council of Europe Convention
10. The Council of Europe Convention (including the Additional Protocol) has not been ratified on behalf of Jersey because of the absence of direct statutory provision enabling repatriation of prisoners from and to Jersey. Ratification of the Convention (and the Additional Protocol) on Jersey’s behalf is an important step in our being able is a possible way to enable us to repatriate prisoners to their country of origin, but the extension of the 1984 Act by Order in Council is no longer considered the appropriate way to pursue that objective. As stated above, the statutory regime for repatriation of prisoners from and to Jersey ought instead to be contained in Jersey primary legislation.
Council of EuropeEU Framework Decision 2008/909/HA
11. To complete the picture in relation to relevant international arrangements EU conventions, on 27 November 2008 the European Union adopted Council Framework Decision 2008/909/JHA `on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.’ It will enter into force on 5 December 2011. At Article 6.2(a) of the Framework Decision there is an additional criterion to the two above under the Additional Protocol to the effect that the consent of the sentenced person is not required where the transfer is to the Member State of nationality in which the sentenced person lives.
12. Member States are required to comply with the provisions of Framework Decision 2008/909/HA by the 5th December 2011. However, in the case of Poland, allowance has been made for the practical and material consequences of transfer of Polish citizens convicted in other Member States, especially in the light of an increased mobility of labour within the EU. In view of this, in the case of Poland, there is likely to be a temporary derogation of limited scope for a maximum period of 5 years. This may be of significance to Jersey should we seek to enter into a bi-lateral agreement with Poland at a later date.
13. Ways are currently being explored by the Crown Dependencies, in consultation with the United Kingdom, of engaging with the EU Member States (perhaps by way of individual bi-lateral treaties or extending those currently negotiated by the UK government) to bring about mutual recognition as between the CDs and EU States. Important as this is, it is a task separate and distinct from the drafting of legislation to implement the Council of Europe Convention.
14. As an aside, cConnected with the Framework Decision is the need to lay a statutory foundation for the mutual enforcement of non-custodial sentences such as probation, community service etc. sentences within the British Islands. This again is a separate piece of work should the Island wish to put such arrangements in place.
The Criminal Justice Act 2003 governs transfer of sentences within the United Kingdom and there is a permissive extent provision in the Act. The Law Officers are studying the feasibility of a possible Order in Council under that permissive extent provision. But, if that proves not to be the appropriate legislative vehicle, the only alternative may be a bilateral agreement with the United Kingdom on the lines of the intended bilateral treaties with other Member States of the European Union.
Purpose and Provisions of the Law
Principal Purpose
15. The principal purpose of the the draft Repatriation of Prisoners (Jersey) Law, 201- [hereinafter referred to as “the Law”] is to fulfil the same purpose in this jurisdiction as the Repatriation of Prisoners Act 1984 fulfils in the United Kingdom, ie: to make provision for facilitating the transfer between Jersey and places outside the British Isles of persons detained in prisons, hospitals or other institutions by virtue of orders made by courts and tribunals.
Transfer of a prisoner into or out of Jersey
16. Under the Law, warrants providing for the transfer of a prisoner into or out of Jersey will be issued by the Home Affairs Minister (“the Minister provided:
(a) international arrangements apply to Jersey which provide for the transfer between Jersey and a country or territory outside the British Islands of a prisoner;
(b) the Minister and the appropriate authority of that country or territory have each agreed to the transfer under those arrangements of the prisoner; and
(c) in a case in which the terms of those arrangements provide for the prisoner to be transferred only with his or her consent (‘a consent case’), the prisoner’s consent has been given.,
17. The Minister must not issue a warrant in any case where, before the transfer in question takes place, circumstances arise or are brought to the Minister’s attention which in the Minister’s opinion make it inappropriate that the transfer should take place. If one has been issued in such circumstances, it should be revoked. In particular, a warrant for a transfer out would not be issued unless the transfer appears to the Minister to be appropriate, (having regard to any close ties which that person has with Jersey) or it appears to the Minister that the transfer is for the purpose of a prisoner’s temporary return. In the case of a transfer to Jersey, thereThere would have to be close ties with Jersey whether or not the prisoner was a British citizen; the fact that the prisoner abroad was a British citizen would not of itself bring into play the power of the Minister to issue a warrantaccept a prisoner.
18. When issuing a warrant, other than one superseding an earlier warrant, the Minister must satisfy himself that all reasonable steps have been taken to inform the prisoner in writing in the prisoner’s own language:
(a) of the substance, so far as relevant to the prisoner’s case, of the international arrangements governing the transfer.
(b) of the effect of the warrant on the prisoner.
(c) in the case of a transfer into Jersey, of the effect of the Law relating to the prisoner’s detention under that warrant.
(d) in the case of a transfer out of Jersey, broadly the effect the law of the country or territory to which the prisoner is to be transferred as applies to transfers.
(e) of the Minister’s powers in relation to the revocation of warrants.
19. Where the prisoner’s consent is required, the Minister cannot issue a warrant unless satisfied that the prisoner’s consent has been given. Once consent is given, it cannot be withdrawn after a warrant has been issued.
The Practical Effect of Warrants
20. For a transfer out of Jersey, a warrant authorises the taking of the prisoner to any place in Jersey; his/her removal from Jersey; and his/her delivery to the place of arrival either from Jersey or from the United Kingdom into the custody of a person representing the appropriate authority of the country or territory to which the prisoner is to be transferred.
21. For a transfer into Jersey, a warrant authorises the bringing of the prisoner into Jersey from a place outside Jersey (other than a person imprisoned in the British Islands United Kingdom); the taking of the prisoner to a place in Jersey that complies with the provisions of the warrant; and the detention of the prisoner in Jersey in accordance with the provisions of the warrant.
22. The Minister is required tro consider the appropriateness of the provisions in the warrant, in particular in realation to whether they are equivalent to more than the maximum penalties (if any) that may be imposed on a person who in Jersey commits a corresponding offence, or are framed without reference to the length of the period during which the prisoner would have been detained in the sending country and the length of the period treated as having been served by the prisoner when the provisions take effect.
Transfer of Responsibility for Detention
23. The Minister can issue a warrant transferring responsibility for the continued enforcement of a sentence to Jersey, or from Jersey to another State, where the sentenced person has escaped or absconded from lawful custody and fled to another country. The purpose of this warrant is to prevent a prisoner from escaping the fulfilment of his sentence by removing himself to another country. The powers and processes in respect of this warrant mirror those in respect of a warrant issued to transfer a prisoner into or out of Jersey.
24. The Law also provides for the arrest and detention of a person believed to be unlawfully at large in Jersey from a foreign jurisdiction. This then enables the Minister to determine whether or not to issue a warrant transferring responsibility for the continued enforcement of the prisoner’s sentence from the country in which it was imposed to Jersey.
Temporary Return of a Prisoner
25. The Law provides for the temporary return of a prisoner, either from Jersey to a country outside the British Islands from which the prisoner was previously transferred into Jersey under this Law, or to Jersey from a country outside the British Islands to which the prisoner was previously transferred from Jersey under this Law.
Operation of Warrant and Re-Taking Prisoners
26. Where a warrant has been issued, the prisoner is deemed to be in the legal custody of the Minister at any time when, being in Jersey or on board a Jersey ship, a British ship, a British aircraft or a British hovercraft, the prisoner is being transferred or being kept in custody under the warrant. The Minister can designate an authorised person to take the prisoner to or from any place, or to keep the prisoner in custody, under the warrant. Such a person will have all the powers, authority, protection and privileges of a member of the States of Jersey Police Force. Such a power is important where Prison staff are unable to effect the transfer or a prisoner is being collected for other reasons. Additionally, a prisoner who escapes or is unlawfully at large may be arrested and taken to any place to which he or she is able to be taken under the warrant.
Revocation of Warrants
27. The Minister can revoke warrants and issue new ones to give effect to international arrangements for transfer or where appropriate to cater for other circumstances.
Expenses
28. Any expenses incurred by the Minister in operating the Law will be defrayed out of public funds. In the case of a transfer into Jersey, the Minister has a power to recover any expenses incurred in connection with the conveyance of the prisonerat person to Jersey. However, the Minister need not take recovery action if he considers that such action would be unreasonable, either because of the exceptional circumstances of the case or because the means of the prisoner are insufficient to meet the expenses, and their recovery is impracticable.
Implementation – Practical Implications
29. Although the exact size and make-up of the prison population is constantly changing, it is possible to gain an understanding of the likely effect of the Law’s introduction from an analysis of the present position. During February 2011, the average total prison population was 186. Of that total, there were 100 prisoners who were not `local to Jersey’, broken down as follows:
Table 1: Prisoners - Foreign Nationals and UK (23rd February 2011)
Sentence | Poland | Portugal | UK | Others |
0.5< 1yr | 1 | 0 | 3 (1) | |
1< 2yrs | 0 | 4 | 7 (1) | 1 |
2< 3yrs | 1 | 1 | 3 (1) | |
3< 4yrs | 0 | 3 | 2 | |
4yrs + over | 6 (3) | 18 (2) | 23 (1) | 6 |
Remand | 1 | 3 | 13 (2) | 5 |
Totals | 9 (3) | 28 (2) | 49 (6) | 12 |
Notes to the Table:
1. Others include - Africa, Brazil, France, India, Morocco, Romania and Spain.
2. Figures not in brackets reflect the total number of prisoners in each category.
3. Figures in brackets relate to the number of females included in the totals.
4. Deportation Orders – Poland – of the above total, 3 orders issued with 6 pending.
5. Deportation Orders – Portugal – of the above total, 6 orders issued with 10 pending.
6. Deportation Orders – Others – of the above total, 5 orders pending.
30. None of the prisoners from Poland, or Portugal from countries in the ‘others’ category above, who are not subject to a Deportation Order can claim a close tie to Jersey. Therefore, they would all be candidates for repatriation under the Law. Because of the Island’s much longer association with Portugal and Madeira, it is much more difficult to generalise as to whether close ties exist or not. Each case would bear close examination. However, at least half of the prisoners in the total does not receive regular visits or are more regularly visited by friends rather than relatives. In any case, 16 are candidates for deportation. It should be noted, however, that deportation takes place on completion of a custodial sentence whereas repatriation arrangements could be made immediately a person enters custody.
31. There are currently 49 `UK prisoners’ in La Moye Prison, and it is this category which provides the greatest potential for making financial savings. At this point, Iit is important to note that Jersey has an additional 41 `UK prisoners’, not included in Table 1, who are currently serving their sentence in UK prisons. Since the introduction of the UK Crime Sentences Act 1997, all transfers to England and Wales have been carried out on a ‘restricted’ basis, meaning that in whichever British jurisdiction the prisoner is serving a sentence imposed by the Jersey Court, he or she will be subject to the Jersey custodial regime. Whether transfers of UK prisoners take place on a restricted or unrestricted basis in the future is beyond the scope of this proposition. There will need to be a review of transfers within the British Islands at a later date in the light of experience gained once the Law is in force.
The practical effect of this is on `time served’ in that Jersey has a system whereby prisoners are eligible for remission after two-thirds of a custodial sentence has been served, as opposed to a system of parole that applies in the UK.
Despite the fact that Jersey only transfers prisoners currently on restricted terms, 37 of the 41 prisoners who are serving their sentence in UK prisons requested a transfer on these terms because they could show close ties with a particular location in the UK and could receive regular visits. On that basis, the UK Prison Service does not re-charge thus saving the Island in excess of £1M per annum. The other 4 prisoners have been sent to appropriate UK prisons because they are unsuitable to be kept at La Moye Prison and the Island is therefore charged accordingly.
32. Once the Repatriation of Prisoners (Jersey) Law, 201- has been brought into force, bi-lateral agreements have been put in place with some European jurisdictions, and eligible prisoners are being repatriated to their country of origin on the terms of the custodial regime that applies in those countries, it is highly likely that Jersey would need to transfer `UK prisoners’ to the UK on unrestricted, rather than restricted, terms whereby prisoners were subject to the custodial regime applicable in the UK. This is because the much broader and sophisticated system of transfers between a number of countries would create disparities with the Jersey regime that would be difficult to justify on grounds of fair treatment.
Notwithstanding the fact that the issue of unrestricted transfers is beyond the scope of this proposition and will need further analysis and consultation at a later date, it will be apparent that the ability to transfer foreign prisoners under the Repatriation of Prisoners (Jersey) Law, 201- and the prospect of transfers of `UK prisoners’ under existing legislation but on different terms provides an opportunity to maximise savings in the Prison budget.Although there does not appear to be any reliable means of ascertaining precise numbers, there may be people from Jersey serving a custodial sentences in foreign prisons. However, the numbers are not thought to be significant. It is difficult to quantify potential savings, but these would manifest themselves in terms of staff reductions as the Prison population reduced and judicious use is made of cell accommodation. As part of the Comprehensive Spendingavings Review, the Department has a savings target of £240,000 from 2013, equating to 5 prison officer posts.
Financial and Manpower Implications
33. As explained in paragraph 32, net savings are envisaged through the process of repatriation of prisoners. The only direct cost associated with operating this law is the cost of conveying prisoners back to their home jurisdiction to serve the rest of their sentence. These costs can be absorbed within the Prison budget.
34. In relation to capital projects, the Prison Development Plan will need to be reviewed to take account of a potential reduction in the prison population as this is likely to impact upon the accommodation and regime requirements. Re-provision of cell accommodation in recent years has been essential in order to eradicate the need for `slopping out’. In other words, the priority has been to address the quality, rather than the quantity, of accommodation. The future requirement for the latter now needs to be re-assessed. The main issue will be how to best separate the different prisoner populations (female, young offenders, vulnerable prisoners, etc) rather than the total number of cells.
European Convention on Human Rights
Compatibility Statement
35. Article 16 of the Human Rights (Jersey) Law, 2000 requires the Minister in charge of a Projet de Loi to make a statement about the compatibility of the provisions of the Projet with the Convention rights (as defined by Article 1 of the Law). On the xxxxxxx xxxxxx 2011, the Minister for Home Affairs made the following statement before Second Reading of this Projet in the States Assembly –
36. In the view of the Minister for Home Affairs, the provisions of the Draft Repatriation of Prisoners (Jersey) Law, 201- are compatible with the Convention rights.
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