West Law Report

R (SHAHEEN) v SECRETARY OF STATE FOR JUSTICE

Posted in Art. 8 European Convention on Human Rights, judicial review, Westlaw Reports by mrkooenglish on May 17, 2008

Last Updated: 11:45PM BST 14/05/2008
Queen’s Bench Division (Admin) Dyson LJ May 12, 2008
Queen’s Bench Division (Admin)

Dyson LJ

May 12, 2008

Drug offences – Prisoners – Right to respect for private and family life – Risk – Risk of reoffending – Refusal to consent to prison transfer to serve remainder of sentence Art. 8 European Convention on Human Rights 1950

FACTS

The claimant prisoner (S) applied for judicial review of a decision of the defendant secretary of state to refuse to consent to the transfer of S to the Netherlands to serve the remainder of his 16-year sentence for a drug-related offence.

S, a British citizen who was 61 years old at the time of the offence, had been resident in the Netherlands for 15 years and had a Dutch wife and two teenage children. He had a heart condition and other medical problems.

He was convicted and sentenced in the United Kingdom with his co-accused, a Dutch national (Z), for the offence of importing Class A drugs. Both S and Z applied to be repatriated to the Netherlands to serve the remainder of their sentences there. S did so, in part, on the ground that his family was based in the Netherlands and could not travel regularly to visit him.

Z’s application was granted, but S’s was refused. The secretary of state held that if S were to be transferred to the Netherlands he would be likely to receive a reduction in his sentence, and that would mean that he would be able, after his release, to return to the UK at a time when, but for his transfer, he would have been required to be detained. Z’s case was distinguished from S’s because Z was subject to a deportation order that would prevent him from re-entering the UK.

The secretary of state found that S had demonstrated his willingness to travel to the UK to engage in criminal activity, and concluded that the risk of S reoffending in the UK outweighed the consideration of his family links in the Netherlands. S was 64 years old at the time of the instant proceedings.

S submitted that the secretary of state’s refusal to consent to his transfer to the Netherlands was a disproportionate interference with his rights under the European Convention on Human Rights 1950 art. 8. He argued that the secretary of state had failed to balance three key factors in coming to his decision: the effect the detention had on him and his family, the distinction between his circumstances and those of Z, and the risk of his returning to the UK to reoffend.

S contended that it was not clear what assessment of risk the secretary of state had actually made, and that if it had been assessed as significant it was an overstatement given S’s age and medical condition.

ISSUE

Whether the secretary of state’s refusal to consent to S’s transfer to the Netherlands was a disproportionate interference with his rights under the European Convention on Human Rights 1950 art. 8.

HELD (application refused)

It was true that the secretary of state did not say at what level he rated the risk, but he did say that S had demonstrated a willingness to travel to the UK to engage in criminal activity. By saying that, he was expressing the opinion that there was a real or significant risk that if he were transferred to the Netherlands he would reoffend in the UK.

His words could not bear any other meaning. The secretary of state was reasonably entitled to make that assessment. S’s age, his residency in the Netherlands and his medical condition did not prevent him from committing the index offence, and the fact that he was 64 at the time of the instant proceedings did not reduce the risk of his reoffending.

It was accepted that prisoners had rights under art.8 of the Convention, but the right to see their families was inevitably curtailed simply because of their imprisonment. Even if prisoners were transferred closer to their families, they only had exiguous rights to see them. Further, the secretary of state’s different treatment of Z was soundly based and did not cast doubt on the decision.

Helen Law (instructed by Bhatt Murphy) for the claimant. Parishil Patel (instructed by Treasury Solicitor) for the defendant.

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