There is little guidance derived from case law on how the transfer of a sentence to the UK can run parallel to court proceedings. However it is becoming increasingly possible, even for non British citizens provided they meet the requisite criteria. In 2019, Natasha has had six sentences transferred to the UK for British citizens sought on EAWs and one sentence transferred for a Polish citizen.
The opportunity for Requested Persons to serve their sentences in this country was envisaged by the EAW scheme. The Council Framework Decision on the ‘European arrest warrant and the surrender procedures between Member States’, June 2002, provides at Article 4 ‘Grounds for optional non-execution of the European arrest warrant':
“If the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law.”
The Framework Decision on mutual recognition to judgments in criminal matters 2008/909 explicitly provides that its provisions apply to the enforcement of sentences in the EAW context. It also provides at Article 4(6) that the provisions of that Framework Decision may be invoked whether the person is in the issuing State or the executing State.
Once the person has given the required consent, the provisions of Article 4 contemplate that the process of consultation and agreement between the two countries may be commenced either by the issuing state or the executing state or the sentenced person (Art.4(5)).
The Framework Decisions therefore envisage a situation in which the person, still on the territory of the executing state, requests that its competent authorities initiate the procedure. The purpose of a transfer is to facilitate the social rehabilitation of the sentenced person, taking into account such elements as, for example, the person’s attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State.
In Laskiewicz v Poland [2014] EWHC 3701 (Admin), the court examined the statutory provisions which may apply to those wishing to serve their sentence in this country. Mr Justice Ouseley referred to the procedure as involving consultation and agreement between the relevant Minister in this country and the appropriate authority of the other country.
Once the requesting state have agreed to the transfer request, it is processed by Her Majesty's Prison and Probation Service. The Framework Decision on transfer provides that the process should be completed within 90 days but it usually takes longer. The Administrative Court will usually grant an extension of time if Her Majesty's Prison and Probation Service can confirm that the process is underway. In Poland v MR the requested person was a Polish citizen whose sentence was transferred so she could keep in contact with her two year old son (even though he was in foster care). Similarly in PA v Portugal the requested person was also allowed to serve her sentence in the UK as it was found to be in the interests of her child in the longer term.
There is currently some dispute about the calculation of requested person’s release date in the event that they are repatriated to the UK. In the UK, prisoners serve half of their determinate sentence in custody and half on licence and prisoners who have returned to the UK should be treated in the same way under the Framework decision. In a recent case however the half way release point of a prisoner’s sentence was calculated on return to the UK rather than the date of sentence. This issue is currently subject to judicial review and an update will be provided as soon as it is determined.
Natasha is a leading extradition barrister who acts for both foreign governments and requested persons. Natasha is ranked in Chambers and Partners and the Legal 500 for her Extradition work.
