2 Bedford Row

FOREIGN PRISONERS AND IPP'S. WHY IT'S OK TO DISCRIMINATE 30 August 2011
Posted by: 2bedfordrowchambers

FOREIGN PRISONERS AND IPP'S. WHY IT'S OK TO DISCRIMINATE

Attorney General’s Reference No.9 & 10 of 2011 [2011] EWCA Crim 1953

Allan Compton and Andrew McGee acted for two Romanian nationals (MN and BN) on 20^th July 2011 in the Court of Appeal. MN had been sentenced to 21 years imprisonment after a trial on an indictment comprising of 32 counts including rape, people trafficking, witness intimidation and controlling prostitution. His father BN received 6 years imprisonment having been convicted of people trafficking.

Neither Mr Compton nor Mr McGee acted for the defendants at their trial in Manchester Crown Court.

The Attorney General referred the sentences to the Court of Appeal arguing in MN’s case that the term of imprisonment was too low and imprisonment for public protection was warranted. In BN’s case it was argued the term of imprisonment was too low.

The case was viewed as nationally important and prosecuted by the Solicitor General in person leading Treasury Counsel.

During the course of the appeal submissions were focussed on the practical effect of imprisonment for public protection on foreign prisoners. It was submitted on behalf of MN that where a foreign prisoner is the subject of automatic deportation, in reality there is no pre-parole hearing planning for progressive release nor is any thought given to carefully formulating licence conditions. Accordingly the foreign prisoner cannot demonstrate that he is safe for release nor will he ever be in a position to do so.

The Court agreed with those submissions, recording that this point had not been addressed n the courts before. The Court ruled that the practical realities of the foreign prisoner’s position when subject to automatic deportation were relevant considerations for a sentencing judge when asking himself whether he ought to exercise his discretion to impose imprisonment for public protection. The Court added that in some cases an IPP will not be appropriate for a foreign prisoner because the effect of those practicalities may be that if it were imposed the foreign prisoner would, in practice, scarcely be available for release and may at the very least spend very much longer in custody than would an equivalent domestic prisoner.

Of note is that clause 100 of the Legal Aid, Sentencing and Punishment of Offenders Bill proposes that foreign prisoners subject to deportations, serving life sentences or IPP’s can, notwithstanding any decision of the parole board (or absence of one) deport any prisoner after he has served the minimum term. This legislation opens up the prospect of highly dangerous prisoners nonetheless being released provided it is into another jurisdiction. Clause 100 does not sit comfortably with the current common law position that when assessing dangerousness a judge is obliged to assess the risk not only to residents of this country but also to those elsewhere.

Notwithstanding those comments in the case of MN an IPP was substituted by the Court, principally as he had continued to arrange for women to be trafficked even whilst on remand awaiting his trial. The tariff was not increased. BN’s sentence was increased to 9 years imprisonment.