Getting home: how can Britons serving sentences overseas transfer to a British prison?

The Ministry of Justice recently updated its guidance for UK nationals who are serving sentences in prisons overseas, and who may wish to serve the remainder of their sentences in the UK. You can read that guidance by clicking here. But what are the conditions which must be met, and what are the practical steps which might be taken to help a UK national serve the remainder of their sentence in their own country?  Christopher Sykes from our Criminal Law and Appeals Team looks at how to go about achieving this.   

In 2015 some 2,205 Britons were in jail overseas (according to the FCO). The pressing question for many of them is how to serve their sentence closer to home. In January 2019 the Ministry of Justice published guidance for prisoners seeking to transfer to a UK prison.

The prisoner must first meet some basic conditions: they must be a British citizen whose trial has ended; they must no longer be pursuing appeals against conviction or sentence; there must be at least six months of their sentence left to serve; and they must have no outstanding fines or non-custodial penalties.

If these conditions are met then the prisoner can request a transfer. They can do so through the foreign prison authorities or through a British consulate. There is no automatic right to transfer. The foreign authorities can simply refuse the application. The UK authorities can also refuse it if the prisoner has not lived in the UK for a number of years and has no close family resident here. There is no statutory right of appeal if the request is rejected by the UK.

If the foreign authorities are receptive to the request then they will send information about the offence and sentence to the UK authorities. If the UK is also receptive then it must tell the foreign authorities how the sentence will be enforced back home.

If the request is granted then the prisoner can return to the UK (after promising to pay their own airfare). The prisoner will serve the remainder of their sentence in a UK prison.

Returning prisoners may be aggrieved at their legal process abroad. They are unlikely to find a remedy in the UK. The courts here have no jurisdiction to review foreign convictions or sentences. They will not increase a sentence, nor will they reduce it to one they might have passed. The only exception is if the sentence exceeds the maximum available for that offence in the UK. If so, the courts may reduce it to the UK maximum. Despite the conviction being foreign, the prisoner will still have a criminal record that puts them under DBS obligations.

It seems that prisoners overseas are largely at the mercy of the authorities when applying for transfer. Foreign and British authorities have wide discretion to reject the application and the prisoner has little recourse to an appeals process. Those in European prisons are in an especially uncertain position. One effect of Brexit may be that the current “EU Prisoner Transfer Agreement” is replaced by the “Council of Europe Convention on the Transfer of Sentenced Persons”. How that Convention will apply in practice is uncertain.

When there is so much at stake, the importance of following the guidance and making effective representations is vital to giving prisoners a chance of serving their sentence closer to home.

If you would like to know more about the issues raised in this article, or to speak with Christopher, please contact our crime team practice managers.