The High Court has ruled that a decision refusing to send an Albanian prisoner back to his home country to serve the remainder of his sentence was unlawful. The decision has been quashed and the Minister will now have to make a further decision as to whether he should be sent back to Albania.
1COR’s Philip Havers QC and Adam Wagner acted for Mr Bucpapa, instructed by David McCorkle of Duncan Lewis Solicitors.
In 2013, the UK and Albania signed a Prisoner Transfer Agreement. When signing the agreement, the government said: “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”.
The Claimant in this case is Jetmir Bucpapa, a 35-year-old Albanian who was jailed in 2008 for his role in a £53 million armed raid at a Securitas depot in February 2006. He was convicted on kidnap, robbery and firearms charges in 2008.
Mr Bucpapa asked to be returned to Albania to serve the rest of his sentence there where his family live, under the terms of a prisoner transfer agreement which the UK and Albania signed in 2013.
The Justice Secretary denied Mr Bucpapa’s request in 2016 on the grounds that he may have the opportunity to be released three years and nine months earlier than he would have been released in the UK. Of the 18 requests under the agreement so far, Bucpapa’s is the only one which has been refused.
Mr Bucpapa’s case was that the refusal is unlawful because it is irrational and unfair. It is irrational because key information was not put to or considered by the minister: that under the terms of the transfer agreement it would have been impossible for the Albanian court to impose any other sentence.
Further, it is unfair to single Mr Bucpapa out when in four other cases involving the most serious of crimes, including pre-meditated murder and rape, defendants have been transferred back to Albania despite a risk of them being released many years earlier than they could have been in the UK. For example, Arben Lleshi, who was convicted of murder and perverting the course of justice, was returned to Albania despite a potential eight-year reduction in his sentence.
The High Court’s decision
His Honour Judge McKenna, sitting as a Deputy High Court Judge, ruled that the Minister’s decision was irrational. He found that there had been “significant omissions” in the submission to the Minister making the decision. In particular, there was a failure to alert him to key aspects of the prisoner transfer agreement, and particularly that under the terms of the agreement the Albanian courts would have no option, because of the operation of the Albanian Criminal Code, but to impose a sentence which could in principle lead to Mr Bucpapa being released earlier than in the UK.
The Judge said at paragraph 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 [Prisoner Transfer Agreement] 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.”
Because he found the decision to be irrational, the Judge did not go on to rule on whether it was unfair to refuse to transfer Mr Bucpapa given that four other serious criminals had been transferred to Albania notwithstanding they could be released years earlier. He did say that if he had to rule on this, he would have found the decision to be fair.