U.K. LAW RAISES SERIOUS HUMAN RIGHTS ISSUES

Drug Case Transfers and Parole

Regarding the enforcement of sentences of British subjects transferred under the Bilateral Prisoner Transfer Treaty with Thailand (1992).

 British prisoners in Thailand’s Penal System have regarded the enforcement of the provisions of this Treaty as both flawed and manifestly unjust since it was first enacted. Whilst transferred prisoners from other states with such Treaties are released by the time they have completed a maximum of ten years, and in the case of the USA, considerably less.  A British subject with a comparable Thai sentence is faced with 20-25 years before consideration for parole by the British Authorities.   The British Government insist that the terms of the Treaty are such that their hands are tied, although it was the British Government which was responsible for negotiating and accepting the terms.

The UK Authorities state that a prisoner transferred with a determinate sentence must serve at least one half of their sentence before being considered eligible for parole.  A prisoner transferring with a life sentence would have their parole tariff calculated by the UK authorities. The exact mechanism for doing this was never given; indeed it was never needed for the first dozen years of the Treaty’s existence.   In August 2004 the first such case of a prisoner with a Thai life sentence transferred to the UK and the procedure was put to the test.   In order to understand this case it is necessary to examine Thai sentencing, Amnesty procedures and the UK approach to determining the eligibility for parole.

Penalties for class A drugs offences in Thailand amongst the severest. In South East Asia, the numbered sentences can be as high as 50 years for a single offence.  Recent provisions have made clear that for the purposes of amending a sentence of ‘life’ due to co-operation of the defendant by pleading guilty at the earliest opportunity, or by giving evidence or information to the law enforcement agencies, the sentencing judge may shorten a life sentence by 1/3 or ½, to 33 1/3 or 25 years.

This means that the correlation between a determinate sentence and life sentence is both clear and direct and does not admit of argument.  Note also that it is the clear intent of the sentencing judge that the determinate sentence be lesser punishment that life.  Previous to these provisions it had been rule of thumb that life was the equivalent of 100 years, rather than 50 years as shown above.   In the Amnesty of 1987, when all prisoners were given the same cut in sentence, regardless of their offences, life sentences were cut to 50 years.  This anomaly has not been explained by the Thai Authorities.

In all Amnesties subsequent to 1987, drugs cases have either been excluded or given far smaller cuts than non-drug cases.   In 1996 they were awarded maximum of 1/5 compared to ½ for non-drugs cases.  In 2004 they were awarded 1/6 compared to 1/3, with the same proportions awarded in 2006.  These cuts apply to determinate sentences.  Death sentences are always cut to life, and life (since 1987) to 40 years.  Cuts are only given to those cases that are final.  In the last two Amnesties in 2004 and 2006, drug cases had to be finalized before 5th December 1999 (the date of an Amnesty from which drug cases were excluded) and 12th August 2004, the date of the previous Amnesty.

 There is stipulation made by the Thai Authorities which has had the effect of ensuring that those sentenced to life for drugs offences must serve 8 years (including time on remand) in a Thai prison.  For determinate sentenced subjects, the stipulation is 4 years or 1/3, which ever is the shorter.   Curiously, those sentenced to life for any non-drug offence including murder, may also transfer after 4 years.  The effect of this has been that those with a final court sentence of life could not apply to transfer until they have served 8 years in Thailand, even if their sentences were cut to a determinate sentence by an Amnesty.  Furthermore, rather than the life sentence which forced them to spend 8 years in Thailand, it was their new amended sentence of 40 years on which the UK Authorities would calculate their earliest release date.   Worse, those towards whom the sentencing Judge had tried to show greater leniency  by cutting their sentence to 50 years, found that the vagaries of the Amnesty system now left them with a higher determinate sentence than those sentenced to life, i.e. 50 years cut by 1/6 + 41 years 8 months!  Even those on determinate sentences lower than 50 years, from anywhere between 25 – 50 years, in fact, were acutely aware that someone returning with a life sentence would have to be given a parole tariff by the British Authorities and that this would certainly be a lower number of years than that which the British Government and its organs in the Home Office insists that they must serve.

This brings us finally to the case of Adeola Soyege, who returned to the UK after having served 9 years of a life sentence, the first UK subject to do so.  That she made it back with her precious life sentence in tact was a minor miracle, and the timing could hardly have been closer.  She was in the custody of the UK prison officers, actually still in the Air, when the Amnesty of 12th August 2004 was officially announced.  This cut her sentence to 40 years, a fact not to lose sight of when considering subsequent events and their potential affects as precedent in determining parole dates for all who follow her, regardless of the nature of their sentences.  Adeola Soyege applied to transfer to the UK, with her life sentence, in early 2003.   She had been arrested on 2nd August 1995 and subsequently pleaded guilty to attempt illegal export of 4.52 kg (calculated pure weight) of heroin carried in her traveling bags.   It therefore fell to the UK Authorities to arbitrarily assign to her a parole tariff, or earliest release date, for her life sentence.  The task was given (by whom?), to the Lord Chief Justice Woolfe.   Indeed Justice Crane later remarked on the ‘informal’ nature of this arrangement’.  After some deliberation, in a letter dated 2nd June 2003, expressed his opinion and ruling thus:

‘The quantities of heroin were very substantial.  The only mitigating fact of which we are aware is the plea.   We do not know what assistance, if any, Ms. Soyege gave the Authorities.  It may be thought desirable to find out whether any significant assistance was given, but on the assumption that this is not the case; my minimum period would be 12 years’.

This letter was produced for the perusal of the Prisoner Transfer Committee in Thailand, who decide whether all transfer conditions have been met and then approve (or very rarely, deny) such transfers.  Ms. Soyege had to wait until a flight scheduled just before midnight on 11th August 2004 to leave Thailand.   The Amnesty was announced on 12th August 2004 and the paperwork regarding her sentence ‘cut’ reached the UK in January 2005,   as it did for other prisoners already there, at least two of which had final court sentences of life, but had these cut to 40 years before they were able to transfer to the UK.  The UK Authorities therefore accepted the newer, determinate sentences for these men as a basis for calculating their parole dates, although this meant that they would spend longer in prison than would have been the case with their original sentences.   Given that the Amnesty intended a cut in punishment, this is clearly absurd.

 Since Ms. Soyege transferred with a life sentence and a letter from Lord Chief Justice Woolfe giving her a tariff of 12 years, when the new adjusted sentence was forwarded to Thailand, what did the UK Authorities do?   In a new ruling, Mr. Justice Crane discussed below, no mention whatsoever is made of her new sentence, this ‘cut’ by Amnesty to a term of 40 years or an earliest release date of 20 years after her initial detention on remand.   We must assume that, in light of the above, the new sentence was set aside on the grounds of absurdity.   And this too should have direct consequences of all those British subjects in drug cases with high, determinate sentences, where the maximum penalty under Thai law is life or death.  

Ms. Soyege’s  case was referred to the High Court under s.2731 of the Criminal Justice Act 2003 for her tariff to be set, despite the twelve year tariff already agreed with Thailand.    Mr Justice Crane of the High Court Queens Bench Division ruled on the case on 1st December 2005.  He ruled against Lord Woolfe and The Home Office, citing R v Armarah (1982), R v Martinez (1984), R v Bilinski, (1987), R v Patel (1987) and a host of other cases to firstly calculate; the proper sentence for such an offence under British sentencing guidelines and secondly; the earliest release date that would result.  For the former he gave a figure of 8 years, the latter he gave 4 years: thus Ms. Soyege earliest release date was 2nd August 1999, a date over six years prior to the date this judgment was issued.  Ms. Soyege’s tariff was adjusted and she was released in January 2006.   Note that although British sentencing practice was used to determine these figures, the sentence of life imposed by the Thai court was left to stand and Ms. Soyege was released on life license.  All other prisoners who have transferred to date have had their sentences given by the Thai Authorizes to the British Authorizes as finite (if large) numbers.   On the face of it, the ruling in Ms. Soyege’s case has no bearing on all of these other cases.  Except that it does, for the following reasons.

 At the time Justice Crane was formulating and then delivering his judgment, Ms. Soyege’s sentence was, according to Thai Authorities, 40 years.  He was in fact ruling that she be given a tariff of 1/10 of her sentence, although since he made no mention of this Amnesty cut he may have been unaware of this fact.   According to the Thai Authorities she has just been awarded another cut of 1/6 (June 2006 Amnesty) and her sentence is now 33 years, 8 months and that is what their records show.   There are numerous British prisoners both in Thailand and in the UK with determinate Thai sentences.  They are discriminated against by UK Authorities on a routine basis.   A transferred prisoner might find himself sharing a cell in a British prison with someone who has committed an almost identical offence, yet he will have to serve as much as six times longer than his cell mate.  The Treaty says that UK rules and regulations will be applied upon on transfer, but the British Penal System, under the direction of the Home Office and as a result of the Treaties signed by the Foreign Office, contrived together to remove the protection of British law from such prisoners and to deprive them of the just and equitable treatment they should be entitled to as of right of British subjects in British prisons.

For those sentenced to numbered terms, or those whose life sentences have been ‘cut’ to determinate terms before they have the opportunity to transfer, the only hope of a timely release is that Mr Justice Crane’s conclusions can be applied to them.  An amendment to the transfer Treaty would be in order, indeed, an amendment to the enabling legislation which made the Treaty possible appears to be called for such as using the precedents of Aramah and Soyege to calculate parole eligibility without altering the Thai sentence, to be applied only on foreign transfers on a case by case basis.

In any event, the claims by British Authorities that they treat all transferred British prisoners fairly, equitably and justly stand exposed by this ruling.   What was true for Adeola Soyege is true for all: that to serve time in a British prison as person should have the benefit of the consideration of British law.   Nor is this a revolutionary idea since the USA, Denmark, Germany and France, to name just a few countries, consider such to be a minimum legal consideration when committing a person to one of their prisons.

The fault in the system is therefore entirely in the UK Authorities hands to correct, as it was their creation in the first instance.  Of all those British subjects arrested Thailand over the years, not one would have received a sentence above 10-14 years in the UK, with the possible exception of Patricia Cahill and Karen Smith, and they were pardoned at the request of John Major after an unrelenting newspaper campaign after having served a brief time, certainly less than 5 years for a large amount of heroin, ten times that in Ms. Soyege’s possession.  Needless to say, the whole of the Foreign Office was vehemently against this action of compassion by the Prime Minister, which tells you all you need to know about the mind set within that institution.   It is this same Foreign Office charged with overseeing the welfare of British subjects in Thai prisons, which tries to convince waveres to transfer, drafting transfer documents and consent forms for them to sign in which they appear to signal their binding acceptance of whatever conditions might be imposed upon them and tells them they may not subsequently take their case before a British judge.  This is now known to be untrue.  That they act in the interest of British prisoners was never believed and is now also known to be untrue.  The case for redrafting the transfer Treaty would appear to be overwhelming.  Only the UK alone of all signatories to such Treaties with Thailand has such severe consequences for transferred prisoners.  It is fervently hoped that someone of principal and influence can force this issue before the House of Commons so that this stain of negligence and injustice may be removed from our legal and penal system, and the whole of the Body Politic.

Thomas Paine.