British man serving 12-year sentence for dangerous driving unsuccessful in petition for transfer to French prison

About this case:

• Citation:
  [2022] CSOH 91
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Carmichael

Thomas Wainwright had been sentenced to 12 years’ imprisonment in March 2017 for causing death by dangerous driving after a fatal road accident on Mull. He argued that the Scottish Ministers, who considered his request during the transition period, had not made the decision to refuse his request in a reasonable and proportionate manner.

The petition was considered by Lady Carmichael. Lazarowicz, advocate, appeared for the petitioner and Byre, advocate, for the respondent.

Analogous offence

The petitioner had lived in France from 1994 to 2017. In March 2017 he appeared for trial in Glasgow High Court on an indictment arising from a fatal road accident on Mull that took place on 28 October 2015. He pled guilty to failing to provide specimens of breath contrary to section 7(6) of the Road Traffic Act 1988 and was convicted by the jury of contravening section 1 of the same Act.

A sentence of 12 years’ imprisonment was imposed by the sentencing judge, who had regard to a number of aggravating factors including a previous conviction from France for a road traffic offence. On 25 January 2018 the petitioner applied to be transferred to the French prison authorities under the Repatriation of Prisoners Act 1984. The respondent issued a certificate in the terms specified under Article 4 of the European Council Framework Directive 2008/909/JHA, and the matter was considered by a French court.

In August 2019, the Tribunal de Grande Instance of Grasse made an order approving the request but authorising the reduction of the sentence to 10 years’ imprisonment, the maximum sentence for the analogous offence under French law. The respondent thereafter refused the petitioner’s request for transfer, reasoning that the substantial reduction in sentence outweighed any personal advantage he might gain from being rehabilitated in France.

The petitioner argued that, at the time they made their decision, the Ministers were required to act in a manner consistent with the provisions of the Framework Decision and give effect to its provisions and policy objectives. They had not been entitled to give the reduction in sentence in the executing state the weight that they had done and had proceeded erroneously on the basis that his chances of returning to live in France after serving his sentence were much higher than they were.

For the respondent it was submitted that the Ministers had a pure and unfettered discretion, and their decision letter had provided adequate reasons for the refusal and did not disclose any error of law. In any event, reduction of the decision would serve no practical purpose as there could no longer be any transfer under the Framework Decision and the certificate had been withdrawn.

Objectives of the court

Lady Carmichael, in her decision, said of the circumstances of the case: “The Ministers accepted that there would be an advantage to Mr Wainwright in being rehabilitated in France. They accepted that he had family and friends with whom it was desirable that he should maintain contact. Those acceptances are explicit in their decision. The Ministers pointed to means by which Mr Wainwright might maintain contact with his relatives. While accepting that there would be an advantage to Mr Wainwright in being rehabilitated in France, they considered that there were factors which outweighed that advantage. The decision letter leaves no doubt as to what those factors were.”

She continued: “The central consideration was the reduction in sentence that would result from the adaptation of the sentence by the French authorities. That reduction would not fulfil the objectives of the sentencing court, including the sentencing purpose of deterrence. It is correct to say that the possibility that the executing state may adapt a sentence downwards in order not to exceed the maximum sentence for an analogous offence available in that state is one inherent in the scheme of the Framework Decision. It does not follow that the Ministers required to accept that the sentence should be adapted and proceed with the transfer.”

On whether it was correct to describe the potential reduction in the petitioner’s sentence as significant, Lady Carmichael noted: “That the sentence to be served would be shorter than that imposed by the sentencing judge, and that release would be earlier than if the sentence were served in Scotland were factors that the Ministers were entitled to take into account. They were entitled to take into account the purposes of sentencing identified and articulated by the sentencing judge. In this case, one of those was deterrence. Counsel suggested that the ministers were not entitled to characterise the reduction in sentence from 10 to 12 years as ‘considerable’ or ‘substantial’. That is wrong. A reduction of one sixth in a sentence of 12 years is one which can rationally be described using those terms.”

She concluded: “The Ministers were correct to observe that a result of the adapted sentence would be the potential for Mr Wainwright to come to the United Kingdom, at liberty, at a point before the expiry of the sentence imposed by the High Court, and entitled to take that into account. I am not satisfied that the Ministers acted unlawfully by failing to have regard to any relevant consideration so far as Mr Wainwright’s rehabilitation in France is concerned, or the humanitarian considerations generally served by transfer.”

The petition was therefore refused.