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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bucpapa v Secretrary of State for Justice [2017] EWHC 1895 (Admin) (27 July 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1895.html Cite as: [2017] EWHC 1895 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/07/2017

HHJ McKenna :

Introduction

1. The claimant, Jetmir Bucpapa, is currently serving a sentence of 30 years imprisonment for robbery, kidnapping and possession of a firearm. He seeks to challenge the decision of the Secretary of State for Justice ("the Secretary of State") dated 9 August 2016 ("the Decision") refusing his application to repatriate to Albania in order to serve the remainder of his sentence in his home country.
2. The claimant has permission from HHJ Stephen Davies dated 24 February 2017 to challenge the Decision on two grounds. First of all he says that the Decision was irrational (that is to say Wednesbury unreasonable) because of the focus of the Decision on the potential reduction in time he might have to serve in prison made it impossible for him to be repatriated. Secondly he says that the Decision is arbitrary, being in breach of the principle of consistency in circumstances where other (a total of 17) Albanian nationals who have committed serious offences have been repatriated despite the potential for a reduction in time they would serve in prison.
3. Permission was refused in relation to two other grounds namely an allegation of ultra vires and a claim based on Article 8 ECHR.
4. The Secretary of State has served two witness statements made by Graham Wilkinson, the Head of the Foreign National Offender Policy and Cross Border Transfer Section of the Prison and Probation Service dated respectively 18 April and 6 July 2017 with enclosures which includes a Submission to the relevant Minister, Mr Gyimah, the Parliamentary Under Secretary of State, prepared for the purposes of his making the Decision.

Legal background

Council of Europe's Convention on the Transfer of Prisoners

5. Both United Kingdom and Albania are signatories to the Council of Europe's Convention on the Transfer of Sentenced Prisoners ("the Convention"). The preamble to the Convention provides:-

"Considering that the aim of the Council of Europe is to achieve a greater unity between its members;

Desirous of further developing international cooperation in the field of criminal law;

Considering that such cooperation should further the ends of justice and the social rehabilitation of sentenced persons;

Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society; and

Considering that this aim can best be achieved by having them transferred to their own countries"

6. The Convention includes the following material articles: terms:-

"2 (1) The Parties undertake to afford each other the widest measure of cooperation in respect of the transfer of sentenced persons in accordance with the provision of this Convention"

"3 (1) A sentenced person may be transferred under this Convention only on the following conditions:

a. if that person is a national of the administering State;

b. if the judgment is final;

c. if, at the time of receipt of the request for transfer, the sentenced person still has at least 6 months of the sentence to serve or if the sentence is indeterminate;

d. if the transfer is consented to by the sentenced person or, where in view of his age or his physical or mental condition one of the two States considers it necessary, by the sentenced person's legal representative;

e. if the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and

f. if the sentencing and administering States agree to the transfer "

9 (1) The competent authorities of the administering State shall:

a. continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or

b. convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11."

11 (1) In the case of conversion of sentence, the procedures provided for by the administering State apply. When converting the sentence, the competent authority:

a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;

b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction;

c. shall deduct the full period of deprivation of liberty served by the sentenced person; and

d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed."

7. The Explanatory Report accompanying the Convention states as follows:

"9. In facilitating the transfer of foreign prisoners, the convention takes account of modern trends in crime and penal policy. In Europe, improved means of transport and communication have led to a greater mobility of persons and, in consequence, to increased internationalisation of crime. As penal policy has come to lay greater emphasis upon the social rehabilitation of offenders, it may be of paramount importance that the sanction imposed on the offender is enforced in his home country rather than in the State where the offence was committed and the judgment rendered. This policy is also rooted in humanitarian considerations: difficulties in communication by reason of language barriers, alienation from local culture and customs, and the absence of contacts with relatives may have detrimental effects on the foreign prisoner. The repatriation of sentenced persons may therefore be in the best interests of the prisoners as well as of the governments concerned."

The Repatriation of Prisoners Act 1984

8. Under section 1 of the Repatriation of Prisoners Act 1984 ("the 1984 Act") the Secretary of State may issue a warrant providing for the transfers of a prisoner in or out of the United Kingdom. Section 1 provides:

"(1) Subject to the following provisions of this section, where-

a) the United Kingdom is a party to international arrangements providing for the transfer between the United Kingdom and a country or territory outside the British Islands of persons to whom subsection (7) below applies, and

b) the relevant Minister and the appropriate authority of that country or territory have each agreed to the transfer under those arrangements of a particular person (in this Act referred to as "the prisoner"), and

c) in a case in which the terms of those arrangements provide for the prisoner to be transferred only with his consent, the prisoner's consent has been given, the relevant Minister shall issue a warrant providing for the transfer of the prisoner into or out of the United Kingdom

(2) the relevant Minister shall not issue a warrant under this section, and if he has issued one, shall revoke it, in any case where after the duty under subsection (1) above has arisen and before the transfer in question takes place circumstances arise, or are brought to the relevant Minster's attention, which in his opinion make it inappropriate that the transfer should take place "

9. It is common ground that a primary policy purpose of the 1984 Act is " the obviously humane and desirable one of enabling persons sentenced for crimes committed abroad to serve out their sentences within their own society which, irrespective of the length of sentence, will almost always mitigate the rigor of the punishment inflicted": see R v Secretary of State for the Home Department ex parte Read [1989] AC 1104 at page 1048 (Lord Bridge) cited with approval by Davis LJ in Bristow v Secretary of State for Justice [2015] EWCA Civ 1170 at paragraph 12.

UK – Albania Bilateral Prisoner Agreement

10. The application of the 1984 Act is dependent on there being a specific agreement between the sending State and the receiving State. That agreement is the Prisoner Transfer Agreement ("PTA") signed on 15 January 2013. Neither the 1984 Act nor the PTA provides for any legal right of a prisoner to be transferred; the decision is one for the contracting States alone.
11. The recital to the PTA states that its purpose is to "ensure that wherever possible foreign national prisoners should serve their sentences in their own countries"; and reaffirms that "sentenced persons shall be treated with respect for their Human Rights."
12. Article 2 of the PTA provides:

1. "The Parties shall afford each other the widest measure of cooperation in respect of the transfer of the sentenced persons in accordance to the provisions of this Agreement.

2. As between the Parties, this Agreement shall prevail over any multilateral Agreements governing the transfer of sentenced persons to which both Parties may be party.

3. Where both Parties agree and in accordance with the provisions of this Agreement, a sentenced person may be transferred from the territory of the transferring State to the territory of the receiving State with or without the sentenced person's consent in order for the sentenced person to continue serving the sentence imposed by the transferring State.

4. The transfer of sentenced persons may be requested by either the transferring State or the receiving State.

5. The Parties may enter into a Memorandum of Understanding governing the implementation of this Agreement."

13. Article 3 provides:

"Conditions for Transfer:

Sentenced persons may be transferred under this Agreement only on the following conditions:

(a) the sentenced person is a national of the receiving State for the purposes of this Agreement;

(b) the sentenced person consents to the transfer or is subject to an order for expulsion, deportation or removal from the transferring State;

(c) the judgment is final and no other legal proceedings relating to the offence or any other offences committed by the sentenced person are pending in the transferring State;

(d) the acts or omissions for which the sentence has been imposed constitute a criminal offence according to the receiving State or would constitute a criminal offence if committed on its territory;

(e) the sentenced person has still at least 6 months of the sentence to serve at the time the request for transfer is received; in exceptional circumstances, the Parties may agree to a transfer even if the sentenced person has less than 6 months of the sentence to serve; and

(f) the transferring and receiving States both agree to the transfer."

14. Article 7 (2) reflects Article 11 of the Convention and is in these terms: -

"Continued enforcement of sentence

1. Where the sentence imposed by the transferring State is compatible the laws of the receiving State, the receiving State shall enforce the sentence as if the sentence has been imposed in the receiving State. The receiving state shall not convert the sentence to a sentence which may have been imposed in the receiving State for a similar offence.

2. If the sentence exceeds the maximum sentence prescribed in the receiving State for a similar offence, the receiving State may, with the agreement of the transferring State prior to transfer, reduce the sentence to the maximum sentence provided in the legislation of the receiving State for that criminal offence. The appropriate authorities of the receiving State shall be bound by the findings of fact, in so far as they appear from any opinion, conviction, judgment or sentence imposed in the transferring State. The sentence shall not aggravate, by its nature or duration, the sanction imposed in the transferring State."

15. An undated Explanatory Memorandum to the PTA has been produced. It states under the heading "Policy Considerations" the following:

"Foreign national prisoners make up approximately 13% of the prison population. Many of those prisoners have no right to settle in this country and others will have forfeited that right by their criminal behaviour. The Government is committed to ensuring that, where appropriate, they should be returned to serve their sentences in the countries where they will live on release. This will free up prison places and enable prisoners who are transferred to be more effectively integrated into their home communities. To this end it is Government policy to negotiate and conclude prisoner transfer agreements with a wide number of other countries or to encourage other countries to participate in the European Convention on the Transfer of Sentenced Persons (1983) or the Commonwealth Scheme for the transfer of convicted offenders within the Commonwealth (1990, as amended).

…In deciding whether or not a prisoner should be transferred without his or her consent, account will be taken of the prisoner's views and of their links with the United Kingdom and with Albania. Account will also be taken of prisoner conditions in the receiving State and any concerns as to the prisoner's safety in the event of a transfer. However, in the case of a prisoner returning to his own country where he has recently been resident, the government believes local prison conditions should be viewed in the context of the general living conditions of the country concerned. A prisoner has no formal right to appeal against the decision to transfer him to a prison of the country of his nationality but will be able to seek a judicial review of the decision in the normal way".

16. There has only been one reported decision which has directly considered such prisoner transfer agreements. That is the case of R (Shaheen) v Secretary of State for Justice [2008] EWHC 1195 (Admin) a decision of Dyson LJ, as he then was. That was a case that concerned a British citizen who has lived in Holland with his Dutch wife and children and, when he requested that he be returned to Holland to serve the remainder of his sentence for importing class A drugs, the Secretary of State refused his request. Dyson LJ noted at paragraph 16 that:

"it will be seen that neither the Convention nor the 1984 Act gives any guidance as to what the Secretary of State should take into account in determining whether or not to consent to the transfer of a prisoner."

17. The decision makes it clear that the Convention gives the sentencing state an unqualified discretion to grant or withhold its consent, subject only to the constraints that the decision must not be in breach of the Human Rights Act or be unreasonable in the Wednesbury sense (see paragraph 28).

The Albanian Criminal Code

18. Article 64 provides as follows:

"Release on parole

The convict may be released from serving a sentence earlier on parole only for specific reasons, if his behaviour and work demonstrates that, referring to the time served, the purposes of his education has been fulfilled, and he has served;

no less than half of punishment time imposed for criminal contraventions;

no less than two third of the punishment given for crimes punishable to imprisonment up to 5 years;

no less that three fourths of the punishment for crimes punishable to imprisonment for five to twenty five years...

The time benefited based on an amnesty or pardon shall not be calculated into the served punishment.

It shall not be allowed to release on parole a recidivist for a crime committed with intent as well as a convict due to the commission of criminal offences provided for in Article 78/a, 79/a, 79/b, 79/c or the third paragraph of Article 100.

Release on parole shall be revoked by the court, when the convict sentenced for a intentionally committed criminal offence, commits another intentional criminal offence during the parole period, applying the provisions on joining the punishments."

19. Article 65 provides as follows:

"A convict serving life imprisonment shall not be allowed to be released on parole.

Only under extraordinary circumstances may the convict serving life imprisonment be released on parole, if:

He has served no less than twenty five years imprisonment and during the period serving sentence has shown excellent behaviour and it is deemed that the educational aim of the sentence has been achieved."

Factual background

20. The claimant is an Albanian national prisoner. On the 29 January 2008 he was sentenced by the Central Criminal Court to an indeterminate sentence with a minimum term of 15 years for conspiracy to commit robbery, conspiracy to kidnap and conspiracy to possess a firearm for his role in the 2006 robbery of a Securitas depot in Tonbridge, Kent during which £52,996,760 was stolen.
21. In his sentencing remarks, the trial judge Mr Justice Penry-Davey described the raid as "meticulously prepared and ruthlessly executed. From an early stage the plot included the kidnapping and holding hostage of Colin Dixon, his wife and young child. You required somebody who was able, under threat of lethal violence to himself, his wife and young child, to give access to that depot and unimaginable quantities of cash. Once you were inside, heavily disguised and heavily armed, all those inside going about their lawful business were coldly and violently threatened and trussed up before being locked into cages and abandoned. Confronted by armed hooded men, it is unsurprising that they were terrified and that some of them continue to suffer long term effects, some of a life changing nature, particularly in the cases of the Dixon family who have lost their home, their work, their friends; having effectively, because of your conduct, to start their lives again. Mission accomplished, the gang, including 4 of you, fled into the night with some £53 million in cash, the amount limited only by the capacity of the vehicle which could be used to gain access to the site. This was organised banditry for uniquely high stakes and following a vast, complex and thorough investigation and a long trial you now stand to be sentenced for your part".
22. On 25 November 2010 the claimant's sentence was quashed by the Court of Appeal which substituted a 30 year determinate sentence, he would be entitled to automatic release on licence after 15 years imprisonment expiring on the 3 March 2021. Moses LJ giving the judgment of the court said "we do not think, having regard to his absence of previous conviction and the fact that he had attained the age of ultimately 26 years without having been in trouble, that it is justified the view as to future risk on his release". The court concluded that "despite his previous good character, this offence was so serious and almost as serious as it gets, as to justify this heavy sentence".
23. A deportation order was made by the Secretary of State on 18 September 2013 following a recommendation by the Central Criminal Court which remains in place.
24. On 23 July 2012 the claimant applied to be repatriated to Albania on the basis that he would serve the rest of his sentence there. In accordance with the ordinary process, the Secretary of State requested that the Albanian authorities obtain a judicial decision from the Albanian courts as to the treatment of the claimant's 30 year determinate sentence as imposed by the Court of Appeal. Such a sentence would, subject to various exceptions which don't apply here, mean that a prisoner is released on licence at the half way point of his sentence (pursuant to section 244 of the Criminal Justice Act 2003). Release on licence would include conditions and the prisoner would be subject to supervision. In the claimant's case section 244 would have taken effect after 15 years; that is to say in March 2021 having regard to time already served in custody before sentencing.
25. On 3rd July 2014 the Court of Appeal of Durres, ("the Albanian Appeal Court") converted the sentence set by the Court of Appeal in this country to a sentence of 15 years imprisonment. The basis for the Albanian Appeal Court's reasoning was that, if it were to impose a sentence of 30 years imprisonment, the effect under the Albanian system would have been that the claimant would have been imprisoned for 30 years since there is no Albanian equivalent to the automatic release provisions at the half way point which apply in the United Kingdom and therefore "his term of imprisonment would not be 15 years as established by the British court but two times higher". A 15 year sentence would therefore ensure the implementation of the principle of non-aggravation provided for in the final sentence of Article 7 (2) of the PTA.

The decision under challenge

26. The claimant's application was first rejected on 9 April 2015 on the basis of a potential reduction in time to serve following the transfer and a conclusion that the transfer would damage the public's confidence in the justice system and the transfer process.
27. Subsequent to the service of a pre-action protocol letter, the Secretary of State agreed on 24 June 2016 to reconsider the 9 April 2015 decision and invited the claimant to submit representations. In the event, other than the representations which had previously been submitted and a medical report detailing the claimant's father's failing health, the claimant's solicitor confirmed that he did not intend to submit further representations on the claimant's behalf.
28. On 1 August 2016 the Minister was provided with a Submission which provided him with the material on which he based the Decision. It included the following passages:

"Enforcement of sentence following transfer

8. Enforcement of a sentence following transfer is a matter for the receiving state. While the receiving state is normally required to continue to enforce the sentence in full, that state's domestic release arrangements replace those of the sentencing state. This can result in a prisoner being released from custody either earlier or later than would be the case in the sentencing state. In addition to applying its domestic release arrangements, a receiving state can adapt (reduce) a sentence where it exceeds the maximum available to its courts for the specific offence. If the sentencing state is not satisfied with the way the sentence will be administered following transfer it can withdraw its request and refuse transfer.

9. In Mr Bucpapa's case the Albanian authorities have indicated that they cannot enforce a 30 year sentence. They have said that they would instead adapt it to one of 15 years. Under Article 139 of the Albanian criminal code, robbery attracts a maximum sentence of 15 years and under Article 109, the maximum sentence for kidnapping is 20 years. Although the maximum sentence available to the Albanian courts in this case would be one of 20 years, the court considering this case has set the sentence at 15 years. If transferred, Mr Bucpapa could be considered for release at the three quarter point of the sentence. Release is not guaranteed at this point and will be determined by the Courts in Albania. Only if the prisoner has engaged with the prison regime, education or work in prison will release be considered. If released at the three-quarter point of the sentence Mr. Bucpapa will be released some 3 years and 9 months earlier than his conditional release date here (which would have been the half way point of his 30 year sentence, i.e. 15 years). Whilst a reduction in time to serve would not, on its own normally result a refusal to transfer a prisoner, it is a valid reason for rejection, especially in cases where such reduction is considered substantial.

10. Kent Police, who were responsible for the investigation of the robbery, have objected to Mr Bucpapa's transfer. They believe that Mr Bucpapa has links to organised crime in Albania which could undermine the Albanian authorities' ability to detain him. This cannot form a ground for refusing the transfer as the police have not offered any evidence to support this. Since the introduction of the Agreement with Albania 17 prisoners have been transferred there, including prisoners serving long determinate and indeterminate sentences. There is no evidence to date that the Albanian authorities have neen unable to detain or properly manage those who we have transferred.

11. It is the view of Mr Bucpapa that he is being treated differently to other prisoners who have been allowed to transfer and who have benefitted from reductions in time to serve. He has also claimed that his rights under Article 8 ECHR (right to family life) have been breached by the previous decision not to let him serve his sentence in Albania until his conditional release date and further relies on the fact that his father has a heart condition for which he has provided medical proof.

…

13. We are of the view that there remains a compelling reason to refuse Mr Bucpapa's transfer request. He has been convicted of a serious offence in which firearms were carried, persons were kidnapped and threatened, and where a substantial amount of the proceeds of the crime remain unaccounted for. This was a high profile robbery which attracted considerable national media coverage. Mr Bucpapa's transfer and early release in Albania could undermine public confidence in the transfer system. You might consider that this, when coupled with the potential reduction in time to serve, mitigate against approving this request.

14. It remains open to you to approve this request notwithstanding the previous decision to refuse it. Mr Bucpapa is an Albanian national and his family live there. Although Mr Bucpapa would be likely to benefit from a reduction in time to serve the reduction in this case is not disproportionate or out of line with that allowed in other cases. It is government policy that, wherever possible, foreign nationals should serve their sentences in their own country. Mr Bucpapa has applied for transfer but would also be in scope for compulsory transfer. As a foreign national offender Mr Bucpapa will be subject to a deportation order and will in any event be returned to Albania on release. Transferring him to a prison in Albania now will enable him to re-establish his links with his family and friends there, and be properly prepared for release into the community by the Albania authorities. While the deportation order remains in force he will not lawfully be able to return to the United Kingdom. You might consider that these factors tip the balance in the favour of the transfer."

29. On 9th August 2016 the Secretary of State again rejected the Claimant's application to be repatriated in the Decision essentially for the same reasons as were given in the April 2015 decision. The Decision included the following:

"In your letter of 4 April 2016 you referred to other Albanian prisoners convicted of serious offences whose repatriation to Albania had been agreed, notwithstanding the fact that they would potentially be released early following their transfers. You suggested that to refuse your client's repatriation on the basis that he could be released early if transferred was discriminatory and degrading treatment for the purposes of Articles 14 and 3 of the European Convention on Human Rights. Finally, you submitted that your client's father is in poor health and that you client wished to return to Albania in order to re-establish family ties.

The Secretary of State has considered your client's representations together with the background facts of this case. He recognises that it is government policy that, where possible and appropriate, foreign nationals should serve their sentences in their own countries. He further recognises that your client wishes to re-establish relationships with his family in Albania and that other prisoners have been transferred to Albania despite a potential reduction in their time in prison.

Notwithstanding these factors the Secretary of State has decided to refuse your client's request for repatriation and has concluded that your client should remain in the UK to serve the remainder of his prison sentence.

Your client has been convicted of a number of extremely serious offences. He participated in a well-organised and large-scale robbery of an extremely large amount of money, the majority of which remains to be recovered. The crime involved the kidnapping of a number of persons, including a child, and the making of threats to kill.

Although release on parole in Albania is not automatic the Secretary of State remains concerned that your client could potentially be considered for release some 3 years and 9 months earlier than he could be if he were to remain in the United Kingdom. Early release of someone convicted of such offenses in these circumstances would risk undermining public confidence in the criminal justice system including the prison transfer process.

Decisions on prisoner transfers are discretionary and highly fact-specific. Although in some instances prisoners convicted of serious offences have been transfered despite a potential reduction in time to serve, the Secretary of State is not bound to reach the same conclusion in your client's case or any other case; all decisions on transfer are taken on their individual merits in light of the particular circumstances. The Secretary of State's decision must focus on the circumstances of your client's case and not those of some other case.

Your client's separation from his family does not represent a compelling reason to grant transfer. Further, any interference with your client's Article 8 rights under the European Convention on Human Rights(which is not admitted), in respect of separation from the remainder of your client's family in Albania would amount to a justified interference as a consequence of the crime he chose to commit in the UK and the sentence imposed in the UK. Your client has, of course, no right to choose where he should serve his sentence.

In light of these considerations the Secretary of State decided that, because of the unusual severity of you client's offences and the possibility of him being released from prison 3 years and 9 months earlier than if he were to remain in the UK, the transfer would damage public confidence in the transfer system and should be refused."

30. Mr Wilkinson in his first witness statement explains how repatriation decision making takes place as follows:-

"6. Within the context of these arrangements it is Government policy that, where appropriate, prisoners should serve their sentences of imprisonment in their own countries. As there is no automatic right to transfer, each case is considered on its individual merits. The decision on whether or not a sentenced person should be transferred is a matter for the Secretary of State. In determining whether or not a sentenced person should be transferred, the Secretary of State will weigh in the balance the interests of the persons requesting transfer against other interests such as: the views of victims, the seriousness of the offence, the impact of transfer on the enforcement of sentence following the transfer and the consequences for public confidence in the criminal justice system. Other factors may also be taken into account where they arise on the particular facts of the individual case. There is no set formula which is always applied; the huge variety between cases means that there could not be.

7. The Secretary of State has a wide discretion in determining a transfer request and the fact that the Secretary of State previously approved transfer requests to a particular country cannot bind her to approving all future requests for transfers to that country. To do so would be to remove her discretionary power granted by Parliament and render consideration of any individual transfer request meaningless. Each is, and can only be, considered on its own merits.

8. As consideration for transfer is case specific it follows that different decisions may be reached in individual cases depending on the circumstances of those cases…

9. The impact of sentence enforcement arrangements is also an important factor. Once a sentenced person has been transferred the release arrangements applicable in the sentencing State cease to apply and are replaced by those applicable in the receiving State. As a consequence, the release of a sentenced person following transfer may be earlier or later than would have been the case in the sentencing State. The change in release arrangements, including reduction in likely time served, would not on its own necessarily result in refusal to transfer an individual, unless the change was so significant that the Secretary of State considered transfer to be inappropriate.

10. However a reduction in time to serve may not be appropriate when coupled with other factors. For example, in 2016, the Secretary of State refused the request for transfer to Italy where a prisoner was subject to an additional consecutive term of imprisonment in default of non-payment of a confiscation order and was likely to avoid serving that term or satisfying the financial order if transferred"

Ground 1

31. The Claimant puts his challenge in two ways. Whilst it is accepted that the Secretary of State is afforded a discretion as to whether to grant or withhold consent, it is nevertheless irrational for the Secretary of State to rely on the potential for early release as a ground for refusing the application because the principle of non-aggravation is mandatory within the scheme between the United Kingdom and Albanian governments so that the Albanian Appeal Court could not have acted otherwise than it did and the Secretary of State's decision effectively makes it impossible for the Claimant to be transferred. Put another way it said that the Minister did not understand the reason why the Albanian Appeal Court converted the sentence to one of 15 years because of a failure on the part of the Submission to spell out the crucial fact that under the terms the PTA the receiving State is not permitted to exacerbate sentence. A Minister without a detailed knowledge of the working of the non-aggravation rule might have considered that paragraph 9 of the Submission demonstrated unnecessary leniency on the part of the Albanian Appeal Court particularly having regard to the reference to the possibility of a twenty year sentence whereas the reality was that it imposed the maximum sentence available to it under the terms of the PTA. In short the decision maker failed to grapple with a key issue surrounding the non-aggravation rule, namely that due to the different criminal justice systems in the two countries, almost any case involving serious crime would lead to a potential reduction in sentence.
32. That is not the only criticism that is made of the Submission since, for example, although it did correctly inform the Minister that a total of seventeen prisoners had been transferred to date to Albania, it did not inform him, as it should have done to ensure that he had the full picture, that to date no such transfer to Albania had been refused. Nor did it provide the Minister with full information regarding comparator cases, a criticism which is relevant to the consistency ground (Ground 2.)
33. It is also said that there is a further error in paragraph 9 of the Submission which had the potential to lead the Minister into error since it made reference to the claimant being released three years and nine months earlier than his conditional release date in the UK which would have been at the half way point of his thirty year sentence when, in fact, the claimant would have been entitled to automatic, not conditional, release at the half way point, that is to say after fifteen years. The point is of significance as it may have suggested that the claimant could have been kept in prison beyond the fifteen year point if he remained in the UK, as compared with the position in Albania and if so, that could have influenced the decision.
34. What is said on behalf of the Secretary of State is that nowhere in the Decision was the judgment of the Albanian Appeal Court called into question nor indeed was it commented on. Moreover the whole purpose of the process of asking the receiving State's courts how they would treat a prisoner's sentence was to allow the transferring State to make an informed decision. Whilst actual or potential reduction in time served was a relevant matter to consider it was not determinative and the ultimate decision depended on all the circumstances of the case. Furthermore whilst it was conceded that there was no reference to the principle of non-aggravation in the Submission, it did nevertheless make it clear that enforcement was a matter for the receiving State and made reference to the fact that the Claimant would been released after 15 years in the United Kingdom and that a reduction in time served abroad would not normally result in a refusal to transfer a prisoner and it would be unattractive for this court to conclude that a Minister, with responsibility for penal policy dealing with repatriation cases, did not know of the principle of non-aggravation in the absence of it being specially drawn to his attention in the Submission.
35. To my mind the question of whether or not the Secretary of State commented on the Albanian Appeal Court's decision is irrelevant. No complaint is made about any such failure. The thrust of the complaint is the apparent failure in the Submission to explain to the Minister the basis on which the sentence was converted to one of 15 years. Nor am I persuaded by the submission that the potential for early release was only one of the factors taken into account by the Minister. True it is that there is some passing reference to a significant proportion of the proceeds of the robbery remaining unrecovered in the Submission but nowhere was it there suggested that the Claimant might benefit from those so far unrecovered funds. Moreover it is difficult to see what difference that issue would make to the issue of where the Claimant served the balance of his sentence. As and when the claimant was released from prison, whether in Albania or in the UK, the position would be the same.
36. In my judgment, on a proper analysis of the Decision, it is plain that the basis of the Decision was that because of (1) the unusual severity of the offence and (2) the possibility of the claimant being released 3 years and 9 months earlier than if he were to remain in the United Kingdom, the transfer would damage public confidence in the transfer system. It follows that a significant basis for the Decision was the inevitable consequence of the operation of the PTA; a fact of which the Minister might well have been ignorant given his very recent appointment and the failure of the Submission to explain the basis of the Albanian Appeal Court's decision. The criticisms made about significant omissions in the Submission and the effect of those omissions on the decision making process are to my mind made out. In these circumstances it was irrational for the Secretary of State to rely so heavily upon what was the inevitable consequences of the operation of the PTA.
37. It follows in my judgment that the Decision should quashed.

Ground 2

38. Having concluded as I have in respect of ground 1 there is, in fact, no need to for me to go on to consider the second ground of challenge based on the principle of consistency but as it was argued before me I will set out my conclusions albeit briefly.
39. The thrust of the submission made on the Claimant's behalf on this ground is that the Secretary of State has repatriated a number of Albanian prisoners who, in the United Kingdom, have been convicted of heinous crimes such as murder and human trafficking and in a number of those cases the Albanian courts have converted the sentences such that there is a possibility that the prisoners in question would be released a number of years earlier than had they been required to serve the remainder of their sentence in the United Kingdom, (and in some cases substantially earlier than would potentially be the position with the claimant in the present case) and it is unfair and arbitrary that the claimant has been, as it were, singled out for refusal. The Claimant drew the court's attention to a number of sentence conversion decisions to illustrate this ground.
40. The difficulty with this submission is that the focus of any decision must be on the facts and circumstances of the particular prisoner in question and not other cases which will each have their own particular factual matrix. It is neither sensible nor appropriate to expect the Secretary of State to carry out the sort of exercise actually undertaken by counsel for the Claimant in their supplementary skeleton. What, it may be asked rhetorically, are the parameters of such an exercise? At what stage are there sufficient decisions to repatriate to Albania that consistency requires that the particular prisoner under consideration must also be repatriated and can it really be just that that the mere happenstance of the point in time when the application is made, relative to other applications, affects the decision? Should any comparative exercise only have regard to the nationality of the prisoner whose request is being considered or should it include nationals of other countries who are signatories of the Convention? Such an approach is, in my judgment, likely to involve lengthy scrutiny of other cases which the decision maker is not being asked to consider directly, rather than focusing on the individual case and, in my judgment, is to be deprecated. It is just the sort of exercise that was criticised in R ( Hussain) v Secretary of State for the Home Department [2012] EWHC 1952 (Admin) where although on the particular facts, the claim succeeded James Dingemans QC, as he then was, recognised that the requirements of consistency could easily lead to the imposition of wholly impractical obligations when he said as follows:

"50. I readily accept the proposition that the principle that like cases should be treated alike does not mean that a decision maker needs to trawl through other cases looking for the possibility that there might be a relevant decision to consider. Lawful decision making should not become either formulaic or difficult to achieve. I also accept that conscientious decision makers, applying their minds to the same set of facts, may sometimes come to different conclusions (a graphic example of which occurred in the case of Otshudi v Secretary of State for the Home Department [2004] EWCA Civ 893 to which Miss Broadfoot referred me.)"

41. The ultimate question is one of rationality as to which it is always possible that a different decision maker considering the same facts could rationally reach a different judgment. To my mind, a general principle of consistency provides no basis, in and of itself, for determining fact specific cases and I would therefore refuse the claim on this ground.

Disposal

42. For the reasons set out above I would allow the claim and quash the Decision.
43. I trust that the parties will be able to agree a form of an order which reflects the terms of this judgment.
44. Finally I would like to take the opportunity to thank counsel for their very considerable assistance in this case.