C' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION CAUSE NO. G 211 OF 2013 BETWEEN: KISHA LETOYA MCLEAN Applicant AND: THE ATTORNEY GENERAL (ON BEHALF OF THE DIRECTOR OF PRISONS) Appearances: Before: Heard: Respondent Mr. Guy Dilliway-Parry ofPriestleys for the Applicant Ms. Suzanne Bothwell of the Attorney General's Chambers for the Respondent Han. Justice Richard Williams 22nd August 2013 Further Written Submissions: 28th August 2013 and 9th September 2013 Draft Judgment circulated: Date of Judgment: 19th September 2013 23,d September 2013 JUDGMENT 34 Introductory 35
The Applicant is a 36-year-old Caymanian national who was convicted by a 36 Mexican Court on 25th April 2006. Regrettably, neither party has been able to 37 produce formal details of the conviction from the Mexican authorities and thereby 38 are unable to precisely confirm what the actual offence was. Although I recognise 20130923 McLean v AG Judgment Page 1 of26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
that there may have been difficulties obtaining these details from the Mexican authorities, I hold the view that the Attorney General should have ensured that he had obtained these details before the warrant was prepared and placed before the Governor. It creates unnecessary uncertainty, especially in a case where one is dealing with an issue of whether an offence is specified in a Schedule, and it sets a poor procedural precedent for future prisoner transfers. Both parties characterise it as being an importation of drugs offence, which could be described as being a drugs trafficking offence in nature. The Applicant termed it as being "the offence of introducing cocaine into Mexico. " Following conviction, the Applicant was sentenced to seventeen years and six months imprisonment. As of the date of this hearing, the Applicant has been in custody for nine years and five months. The Applicant made representations to the Cayman Islands Government that she wished to serve out the remainder of her Mexican sentence in the Cayman Islands. This representation was made on 7th November 2006 via the British Embassy in Mexico City. Pursuant to the Repatriation of Prisoners (Overseas Territories) Order 1986 ("the Order"), which extended the powers of Her Majesty in the exercise of her powers under Section 9(4) of the Repatriation of Prisoners Act 1984, the Applicant's transfer process commenced. 20130923 McLean v AG Judgment Page 2 of26 I ' I
As a part of the transfer process, the Applicant was notified of her release date and other relevant information prior to being transferred pursuant to the requirements of the Order. Mr. Dwight Scott, the then Director of Prisons ("the Director"), calculated and provided the release date if she were to serve the rest of the sentence in the Cayman Islands in accordance with the Imprisonment Law, 1975 and the Prisons (Amendment) Law, 2005 ("the Law"). 2 7 8 9 10 II 12 13 14 IS 16 17 18 19 20 21 22 23 24
These details were provided to the Applicant in an email dated 29'h April 20 I 0, and included a breakdown of her parole eligibility date, earliest date of release and the latest date of release. The Director's calculations set the parole eligibility date at 21th November 2013, the earliest release date at 2nd November 2015 and the latest date of release at I sl September 2021. In a letter dated 6'h December 20 I 0 sent from the Cayman Islands Government Legal Department to the Applicant, she was notified in compliance with Schedule I, Section 1(4)(a) to (e) of the Order of the agreed international arrangements concerning her transfer from Mexico to the Cayman Islands. The content of the said letter informed the Applicant that the transfer was being carried out pursuant to the Council of Europe Convention on the Transfer of Sentenced Persons ("the Convention"), to which both the United Kingdom and Mexico are signatories. She was informed that the Cayman Islands domestic law concerning the transfer of prisoners was in the Order. 20130923 McLean v AG Judgment Page 3 of26
2 The Applicant was also informed in the letter, pursuant to the Order, in particular, Section 1(4) therein ofthe following: (i) that the request for transfer could only be made if her request was made on a voluntary basis. (a) that she understood that the transfer would be carried out pursuant to the Convention, Order and the domestic laws of Mexico. (iii) that she was still serving a prison sentence and that upon transfer, that 8 sentence would be governed by the rules, as set out in the Prison Law of 9 the Cayman Islands. 10 11 12 13 14 15 16 17
18 19 20 21 22 23 24 (iv) that the Director had calculated her remaining prison sentence based on the following information, namely: (a) (b) (c) that she was arrested and placed in custody from 3rd March 2004, that she was sentenced on 26'h April 2006 to seventeen years and six months imprisonment, and that her appeal against sentence had been dismissed. The letter confirmed the content of the April 20 I 0 email by again informing the Applicant that, based on the Director's calculations and the laws in the Cayman Islands, her release dates would be: (a) (b) (c) parole eligibility from 21st November 2013 which was based on her having served 519 of the sentence before being considered for parole, earliest date of release 2nd November 2015, and latest date of release 1st November 2021. 20130923 McLean v AG Judgment Page 4 of26 1 2 3 10 I I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
The Applicant was infonned in the letter of the powers of His Excellency the Governor of the Cayman Islands ("the Governor") under Section 6 of the Order and an extract of Section 6 was attached to the letter. The letter then stated: "In light of the above, please carefully read and consider this letter and its attachments. If any information regarding (d/ above is inaccurate, as it relates to your sentence, please provide us with the correct information !fnrO'l<m your liaison at the British Embassy in Mexico. Please also ensure that this letter and its attachments are read and understood and endorsed before signing the certificate of transfer to be provided to you at a separate time by the Mexican authorities. " Please return a signed and dated copy of this letter to the British Embassy representative assigned to your case, for onward transmission to our office. " The letter then contained the following declaration, which the Applicant signed on 12th February 201 1: "I, Keisha Letoya McLean have read the content of this letter, fully understand and accept the terms of my transfer and sentence as outlined herein. " And at the bottom of the letter the following statement reads: "This letter and its attachments are to be read, signed and dated by the prisoner if she is in agreement with its contents. She is then to ensure that this endorsed letter is sent to the British Embassy representative in Mexico for onward transmission to the Cayman Islands Government Legal Department. " I That being the above information upon which the Director had calculated the remaining prison sentence. 20130923 McLean v AG Judgment Page 5 of26 1
6 7
Pursuant to the warrant issued by the Governor on 23rd May 2012, the Applicant was received into the custody of the prison in the Cayman Islands on 20th December 2012. The Governor was satisfied that the requirements for making the order were fulfilled. The warrant provided that she would serve her sentence pursuant to the Cayman Islands law. On 9th January 2013, shortly after the Applicant's transfer, an official calculation 8 of release dates form was completed and then checked on 16th January 2013. The 9 calculation was the same as that made by the former Director and provided to the 10 Applicant when she was in Mexico. The Applicant was furbished with a copy of I I the calculation and the dates were again explained to her. 12 13
The information included the earliest and latest dates of release. Importantly for 14 the application before me, in relation to parole eligibility, the Director felt this to 15 be governed by Section 2 of the Law. In principle this is not disputed. Section 2 16 determines parole eligibility based on the sentence a person serves for a specific 17 offence. Section 2 breaks down eligibility requirements into two categories, the 18 first pursuant to Section 2(l)(a) concerns sentences where offences are set out in 19 the Schedule to the Law. These are usually more serious offences and they require 20 that at least 5/9 of the sentence be served before one is eligible for parole or 21 release on licence. The second category, pursuant to Section 2(I)(b), are sentences 22 for all the offences that are not "specified" in the Schedule to the Law and require 23 the prisoner to serve only at least one year's imprisonment, or one third of his 20130923 McLean v AG Judgment Page 6 of26 5
6 sentence, whichever is the greater before parole eligibility. The Applicant Icontends that her offence is not listed in the Schedule, so her eligibility should be determined by reference to Section 2(1)(b). With this in mind, the Director determined that, for the purpose of parole eligibility, the relevant offence for which the Applicant was convicted in Mexico 7 was a drug trafficking offence. He must have detetmined that it fell under the 8 entry in the Schedule which stated drug trafficking offences under the Misuse of 9 Drugs Law (2000 Revision) and therefore was a specified offence in the Schedule 10 inserted pursuant to Section 3 of the Law. As a consequence, in calculating the II parole eligibility, the Director applied the 5/9 principal, meaning that the 12 Applicant would have to serve 5/9 of her sentence before she became eligible for 13 parole. When calculating the parole eligibility, he also had in mind that the 14 Applicant's sentence was seventeen years and six months (6,392 days), and time 15 spent on remand in Mexico was 784 days. He calculated that 5/9 of her total 16 sentence was 3,551 days and from that he deducted the 784 days spent on remand 17 in accordance with section 2 of the Law. The Director concluded that the balance 18 of time left to be served by the Applicant before becoming eligible for parole 19 would be 2,767 days, the date being 21 st November 2013. 20 21
22 23 On 6th May 2013, the Applicant's attorneys wrote to the Director challenging the basis of his calculations. The attorneys expressed the view that the Applicant's parole eligibility could not be calculated against the Schedule, because the offence 20130923 McLean v AG Judgment Page 7 of26 6 7 8 9 10 11 was a foreign offence and could not be considered as being a specified offence as it did not appear in the Schedule attached to the Law. The Attorneys submitted to the Director that the Applicant's parole eligibility should have commenced after she had served only one third of her sentence. This is still the position of the Applicant at the hearing before me, who also adds through Counsel's oral submissions that although the offence for which she was convicted may be characterised as being a drug trafficking offence it is not, as is required for it to be a specified offence, actually one of the offences actually defined under the Misuse of Drugs Law. The Respondent's position at this hearing remains unchanged and is the same as that taken consistently by the various Directors. 12
As a consequence, by a Notice of Motion filed on 10th of July 20132, the Applicant applied for leave to seek judicial review of the decision and sought the following relief: 13 14 15 16 17 18 19 20 21 22 23 24 25 (i) (ii) An order Certiorari quashing the decision reached by the Director of Prisons that the Applicant is: a) Subject to the Schedule of the Prisons (Amendment) Law 2005: and b) by virtue of 2(1)(a) above not eligible to be released on licence. A Declaration that the Applicant has not committed an offence listed in the Schedule of the Prisons Law (2005 Revision) and thus the Applicant's release on licence is to be governed by Section 2(1)(b); namely, after one- third of the sentence. (iii) An order of Mandamus that the Director of Prisons determine the Applicant's eligibility for release on licence with reference to Section 2(l)(b) of the Prisons Law (2005 Revision). 2 The copy of the Notice on the Court file is undated. 20130923 McLean v AG Judgment Page 8 of26 6 7 8 9 10
11 12 13
(iv) Give effect to Article 5(1) of the Bill of Rights, Freedoms and Responsibilities of the Constitution of the Cayman Islands, in that no one shall be deprived by government of liberty where such deprivation is not in accordance with a procedure prescribed by the law. (v) Damages pursuant to Order 53. Rule 7 for unlawful imprisonment through the failure of the Director of Prisons to observe and protect the statutory and common law rights of the Applicant; and (vi) Such further consequential or other relief that the Court considers just. " I granted leave for the judicial review by Order dated 9th July 2013. The application for leave was heard 'administratively'. At the inter-partes hearing, I considered oral and written submissions from the 14 patties. Following the hearing I afforded the parties the opportunity to make 15 further written submissions concerning Section 2 of the Schedule to the 1984 Act, 16 as well as my observations concerning the Legal Aid, Sentencing and Punishment 17 of Offenders Act 2012 ("LASPO") (in particular Schedule 16 and Schedule 17 18 paragraph 10), Schedule 20B Part 2 paragraph 4 as well as Schedule 15 of the 19 Criminal Justice Act 2003. Thereafter, the attorneys kindly provided further 20 written submissions. 21 22 The Law in Relation to the Repatriations of Prisoners 23
Prior to addressing the issues concerning the parole date issue, it is helpful for 24 completeness sake and to put the matters into context, to understand the basis 25 upon which the Applicant was transferred to the Cayman Islands from Mexico. 20130923 McLean v AGJudgment Page 90f26 5 6 7 8 9 10 II 12 I3 14 15 16 17 18 19 20 21 22 23
The law governing the transfer was very helpfully summarised and applied to the of this case in the written submissions prepared by Ms. Bothwell. Mr. indicated that, as he felt the summary was on the whole a fair and accurate one, he would have no problem with the Court rehearsing the same in the judgment. In light of this, I intend to largely reiterate Ms. Bothwell's lucid and full analysis of the law which underpins repatriation transfers herein. The transfer took place pursuant to the Order.3 The Order brings into Cayman legislation the principles set out in the Council of Europe Convention on the Transfer of Sentenced Persons.4 The Convention and the Order are designed to enable a national who is convicted and sentenced abroad to return to his home country to serve the remaining part of his sentence. The Applicant was transferred pursuant to Article 10(1) of the Convention. The Cayman Islands is able to continue to enforce the Applicant's sentence, pursuant to the principles set out in Article 10. The sentence remains a sentence of the Mexican court and is not converted into a Cayman sentence. Article 9(1)(a) of the Convention requires that: "The competent authorities of the administering State shall: a. continue the enforcement of the sentence immediately or through a court or administrative order under the conditions set out in Article 10. " 3 See paragraph 3 above. 4 See paragraph 7 above. 20130923 McLean v A G Judgment Page 10 of26 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24
Article 9(3) of the Convention provides that: "The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. " Article 10(1) states that: "In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State. " The Respondent highlights that drug trafficking is an offence recognised by Cayman law. It is submitted that it therefore fulfils the condition in Article 3(1)(e) of the Convention, namely that the conduct for which the sentence has been imposed constitutes a criminal offence according to the law of the Cayman Islands, being the administering state, and would constitute a criminal offence if committed in the Cayman Islands. If this condition were to apply in this matter, I note that there is no requirement for relevant offences in each state to be identical by, for example, being placed in the same category of offence or by use of the same terminology. The purpose of this condition is to prevent the situation where the administering state would be reluctant to implement a sentence for conduct that would not be regarded as criminal domestically. However, in Framework decision 2008/909/JHA an approach was adopted to make this dual nationality requirement "less onerous". Article 7 lists offences, 20130923 McLean v AG Judgment Page 11 of26 1 2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
one of which is trafficking in narcotic substances, for which dual criminality is not required, "if they are punishable in the issuing state by a custodial sentence or a measure involving deprivation of liberty for a maximum period of at least three years, and as they are defined by the law of view issuing State, shall, under the terms of this framework decision and without verification of the double criminality of the act, give rise to the recognition of the judgment and enforcement of the sentence imposed ,,5 When considering Article 10(1) of the Convention there is no issue that the legal nature of the sentence, namely imprisonment, is the same in Mexico and in the Cayman Islands. In respect of the duration of the sentence, it is submitted by the Respondent that there are similarities between the length of sentence imposed by the Mexican Court, and those imposed for like offences in the Cayman Islands. It is agreed by the parties that the transfer to the administering country was initiated under the Order and a warrant issued by the Governor pursuant to section 1 (1) of the Order is the instrument used to effect the transfer. Section 3(1) of the Order provides that: "The effect of a warrant proViding for the transfer of the prisoner into the Territory shall be to authorise: (c) the detention of the prisoner in the Territory in accordance with such provisions as may be contained in the warrant, being , Page 27 of the United Nations Office on Drugs and Crime Handbook on the International Transfer of Sentenced Prisoners. 20130923 McLean v AG Judgment Page 12 of26 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
provisions appearing to the Governor to be appropriate for giving effect to the international agreements in accordance with which the prisoner is transferred" Section 3(3) of the Order provides that: "In determining for the purposes of paragraph (c) of subsection (1) above6 what provisions are appropriate for giving effect to the international arrangements mentioned in that paragraph, the Governor shall, to the extent that it appears to him consistent with those arrangements to do so, have regard to the inappropriateness of the warrant's containing provisions which - (b) are framed without reference to the length- (i) of the period during which the prisoner is, but for the transfer, required to be detained in that country or territory; and (ii) of so much of that period, as will have been, or be treated as having been, served by the prisoner when the said provisions take effect. " Section 3(4) of the Order provides that: "Subject to subsection (6) below, a provision contained by virtue of subsection (J)(c) above in a warrant under this Act shall for all purposes have the same effect at the same provision contained in an order made as mentioned in sub - paragraph (i) or, as the case may be, sub - paragraph (ii) of the subsection (2)(b) above. " 6 Referring to section 3 (1) (c) ofthe Order. 20130923 McLean v AG Judgment Page 13 of26 I
2 9 10 II Section 3(2)(b) provides: "Subject to section 4(2) to (4) below. a provision shall not be contained by virtue of subsection (J)(c) above and a warrant under this Act. In this, it satisfies the following two conditions, that is to say- (b) it is a provision which at the time the warrant is issued may be contained in an order made either - (i) (ii) in the course of the exercise of its criminal jurisdiction by a court in the Territory; or otherwise than by a court, but for the purpose of giving 12 effect to an order made as mentioned in sub - paragraph 13 (i) above. " 14 15 Position of the Parties 16
17 18 19 20
21 22 23 24 25 26 What is for determination is summarised in both the Applicant's and the Respondent's written skeleton arguments. These were elaborated upon by oral submissions at the hearing. The Applicant contends that this is a straightforward issue and concerns the appropriate interpretation of the amended Prisons Law. The Applicant maintains that the offence for which the Applicant was convicted in Mexico is not a specified offence as it is not listed in the Schedule to the Law and, as it is a foreign offence, cannot be termed as or inferred to be as being a drug trafficking offence under the Misuse of Drugs Law (2000 Revision). It is contended that the offence is contrary to Mexican, but not Cayman law and there is 20130923 McLean v AG Judgment Page 14 of26 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
"no lawful basis for the proposition that foreign offences can be iriferred on to the Schedule. " It is argued that the Law is drafted in "clear and unambiguous terms •• , and that it is a "nonjlexible and prescriptive statute which is not open to any form of an action or latitude. " It is submitted that if the Legislature had intended to include the equivalent offences for repatriated prisoners in the Schedule, they would have provided for that in the Schedule. It is contended that the Applicant is not detained under any provision of Law. It is submitted that as the offence cannot be infen·ed on to the Schedule and that, as is the approach for all offences not specified in the Schedule, section 2(b) of the Law must be applied. It is submitted that this means that the correct term of imprisonment prior to which Ms. McLean would be considered eligible for parole is one third. The Respondent contends that the position taken by the Applicant is flawed if taken to its conclusion, submitting that in those circumstances in no part of the Law could offence be viewed as a foreign offence. It is rightly submitted, and not contested, that the Convention intends the sentence to be enforced by the law of the Cayman Islands, being the administering state. 20130923 McLean v AG Judgment Page 15 of26 6 The Respondent contends that the Convention did not intend the administering state to have to change domestic legislation to introduce concepts of foreign offences when determining how to approach remission for transferred prisoners and that such transferred prisoners in this regard should be considered the same as domestic prisoners. This latter submission is not agreed by the Applicant. 7
It is contended that the Respondent, when considering eligibility for parole, is to 8 have regard to the nature of the offence and consider whether it falls within 9 Section 2(a) or Section 2(b) of the Law. In oral submissions this appeared to be 10 agreed by the Applicant, who went on to submit that, after consideration of the II sections, foreign offences cannot be said to fall under Section 2(b) as they are not 12 in the Schedule. The Respondent does not accept the submission that because the 13 offence for which the Applicant is serving her sentence is a drug trafficking 14 offence in nature it automatically falls within the Schedule and that Section 2(a) 15 of the Law applies. The Law would have to specifically actually provide for their 16 inclusion in the Schedule. 17 18 19 20 21 22 23 Conclusion
The Respondent is right to submit that ordinarily the approach in the Cayman Islands, when determining when a prisoner becomes eligible for release on licence at the discretion of the Governor is to firstly look at the offence and then decide whether it is one specified in the Schedule. If it is one that is "clearly 7 listed within the Schedule, then to be eligible the prisoner must have served at least 7 See paragraph 45 Respondent's skeleton argument. 20130923 McLean vAG Judgment Page 16 of26 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22
\thre-rnorlths of his sentence pursuant to Section 2(1 )(a) of the Law. Ifthe offence not clearly listedS" in the Schedule it automatically follows that he will have to serve only one-third of his sentence before becoming eligible. Ms. Bothwell submits that the Convention does not require administering states to alter their domestic legislation to introduce concepts of 'foreign offences' to determine remission periods of transferred periods once they have been transferred. Although there is no clear authority produced for that proposition, it is arguable that the Convention sets out no requirement for a state to do so. It is a matter for the administering state to decide, depending on how it wishes to make clear its intention. Some administering states have recognised the advantages of passing domestic legislation to give clarity in certain areas for such prisoners when it comes to issues surrounding release on licence. For example, the position in England and Wales where there are still some prisoners who have sentences imposed prior to the 3rd December 2012 enactment of LASPO. LASPO is the statute in respect to the release of prisoners, which generally speaking, provides that prisoners with determinate sentences will be released at the halfway point, in line with the Criminal Justice Act 2003, taking into account time spent on remand and the eligibility of the prisoner for Home Detention Curfew. 8 See paragraph 46 Respondent's skeleton argument. 20130923 McLean v AG Judgment Page 17 of26 1
The position for prisoners who were sentenced for offences committed prior to 4th April 2005 depends on when the halfway point of his sentence falls. If it falls on 01' after 9th June 2008, they will usually be automatically released at that point in line with the 2003 Act. However, having regard to Schedule 16 and Schedule 17 Paragraph 10 LASPO, which insert Schedule 20B into the Criminal Justice Act 2003, there are certain exceptions to the entitlement to automatic release at that point with prisoners, for example, serving sentences for certain violent or sexual offences9 being dealt with under older release arrangements. Such prisoners sentenced on or after I st October 1992, who are serving four years or more are eligible for release on licence at the halfway point, subject to a Parole Board recommendation. If the Parole Board has not recommended their release by the time they reach the two-thirds point of the sentence, they will be released automatically at that later stage on licence expiring at the three-quarter point of the sentence 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Paragraph 4(2) of Schedule 20B sets out conditions that have to be met in relation to both domestic and repatriated prisoners for the duty to release to be at the increased level of two thirds ofthe sentence. Paragraph 4(3) of Schedule 20B sets out the conditions that need to apply to the domestic prisoner. The conditions concerning the type of offence to be met in relation to repatriated prisoners are contained in paragraph 4(5) and these partly echo paragraph 4(3)(a) of Schedule 20B. 9 Instead prisoners are considered for release on parole from the halfWay point of the whole sentence 20130923 McLean v A G Judgment Page 18 of26 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22
The specified violent and sexual offences which form the basis of the exception are set out in Schedule 15 of the Criminal Justice Act 2003. I note that Schedule 15, rather than defining certain areas of criminal conduct, is very precise when it refers to the vast majority of the relevant offences, namely that for 60 of the 65 offences reference is made therein not only to the Act under which the offence has been committed but also to the relevant section of that Act. 10 The exception similarly applies to a repatriated prisoner who has been convicted of an offence prior to 4th April 2005 that is listed in Schedule 15 of the Criminal Justice Act 2003. Schedule 20B, Part 2 paragraph 4(5) makes it clear that the exception which applies to domestic prisoners also applies to a person serving a sentence by virtue of having been transferred to the United Kingdom in pursuance of a warrant issued before 9th June 2008 under the 1984 Act if "the offence (or one of the offences) for which the person is serving the sentence corresponds to murder or to any offences specified in Schedule 15 as it had effect on 4 April 2005. " Paragraph 4(1)(a) requires that the conditions set out in paragraph 4(2) must also be met, and this applies to both domestic and repatriated prisoners. I accept that this statutory provision dealing with the exception for certain specified offences concerns the timing of the entitlement to automatic release on 10 The five offences being manslaughter, kidnapping, false imprisonment, an attempt to commit murder/conspiracy to commit murder, aidinglabatinglcounsellinglprocuring/inciting the commission or conspiring to commit or attempting to commit an offence specified in the schedule IS. 20130923 McLean v AG Judgment Page 19 of26 4 5 6 7 8 9 10 II 12 13 14 IS 16 17 18 19 20 21 22
licence for both domestic and repatriated prisoners rather than their eligibility to parole. However, it is a clear example of an administering state making provision in their domestic legislation, where there is a repatriated prisoner (who has naturally committed a "foreign offence") to deal with remission periods after his transfer to that state in fairly similar circumstances to those before me. It reflects an intention that the repatriated prisoner and domestic prisoner be treated the same way in regard to the exception to the general rule on automatic release on licence (remission), which applies to specified offences set out in a Schedule. This is done by making it clear that, although the foreign offence was not committed under the specific relevant English statute referred to in the Schedule, it became a specified offence because it corresponded to one of the offences set out in the relevant Schedule (Schedule IS). The provision was likely felt necessary because the vast majority of the offences set out in Schedule IS specifically defined the offence being under a certain statute, and therefore the repatriated prisoner could otherwise not be said to be serving a sentence given for that offence under that Act. I accept that this approach in England and Wales is not in any way binding, but it is a helpful example of a sensible approach by an administering state to give clarity in relation to its intention concerning release on licence for repatriated prisoners under its own law. The Schedule to the Prisons Act for this particular offence makes direct reference to the specified offence being a drug trafficking offence under the Misuse of 20130923 McLean v AG Judgment Page 20 of26 1 Drugs Law (2000). Section 2 ofthe Misuse of Drugs Act 2000, the definition and 2 interpretation section provides: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 "Drug trafficking offence" means any of the following- (a) an offence under paragraph (c), (j) or (m) of section 3(1); (b) an offence under section 3(1) of attempting any of the matters mentioned in paragraph (a); (c) an offence under section 4 (manufacture and supply of scheduled substances); (d) (e) (j) (g) (h) (i) (j) (k) 20130923 McLean v A G Judgment an offence under section 11 (assisting in or inducing commission outside the Islands of an offence punishable under a corresponding law); an offence under section 19 (using ship for illicit trafficking); an offence under section 47 (assisting another to retain the benefits of drug trafficking); an offence under section 48 (concealing or transferring proceeds of drug trafficking); an offence under section 10(1) of the Customs Law (1998 Revision), in connection with a prohibition on importation or exportation having effect by virtue of section 3; an offence under section 310 of the Penal Code (1995 Revision) of conspiracy to commit any of the offences in paragraph (a), (c), (d), (e), (j), (g) or (h); an offence under section 308 of the Penal Code (1995 Revision) of attempting to commit any of the offences in paragraph (a), (c), (d), (e), (j), (g) or (h); any offence at common law of inciting another to commit any of the offences in paragraph (a),(c), (d), (e), (j), (g) or (h);or Page 21 of26 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
(I) aiding, abetting, counselling or procuring the commission of any of the offences in paragraph (a), (c), (d), (e), (f), (g) or (h);" For completeness sake, Section 2 of the Misuse of Drugs Act (2009) Revision similarly provides: "Drug trafficking offence" means any of the following - (a) an offence under paragraph (c), (f) or (m) of section 3(1); (b) an offence under section 3(1) of attempting any of the matters mentioned in paragraph (a); (c) an offence under section 4 (manufacture and supply of scheduled substances); (d) an offence under section 11 (assisting in or inducing commission outside the Islands of an offence punishable under a corresponding law); (e) an offence under section 19 (using ship for illicit trafficking); (f) an offence under section 12(1) of the Customs Law (2007 Revision), in connection with a prohibition on importation or exportation having effect by virtue of section 3; (g) an offence under section 321 of the Penal Code (2007 Revision) of conspiracy to commit any of the offences in paragraph (a), (c), (d), (e), or (f); (h) an offence under section 319 of the Penal Code (2007 Revision) of attempting to commit any of the offences in paragraph (a), (c), (d), (e) or (f); (0 any offence at common law of inciting another to commit any of the offences in paragraph (a), (c), (d), (e) or (f);or 20130923 McLean v AG Judgment Page 22 of26 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23
(jj aiding, abetting, counselling or procuring the commission of any of the offences in paragraph (aj, (cj, (dj, (ej or (j); or" The Applicant, although serving a sentence for an offence that may be characterised as being a drug trafficking offence in nature it cannot be stated as being one of the specific drug trafficking offences under the Misuse of Drugs Law. It cannot be said to be one of the offences under a specific section of the Law as is required in the definition given under the Law. The Schedule requires certainty and offences cannot be inferred into the list where the offences in the Schedule refer to the specified offence being an offence under a specific Cayman Islands Law. If the Legislature had given due consideration to the effect of the later Prisons (Amendment) Law on prisoners being repatriated under the earlier Order they should, if they had intended corresponding offences to be included in the Schedule, have made that provision. A failure to do so means that the offences are not included in the Schedule. I do not accept the submission that an administering state should not make provision in their legislation to determine issues of remission, they should where clarity and certainty is required. Accordingly, (i) I make a declaration that the Applicant has not committed an offence listed in the Schedule of the Prison Law (2005 Revision) and thus the 20130923 McLean vAG Judgment Page 23 of26 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22
Applicant's release is to be governed by Section 2(1)(b); namely one-third of the sentence. (ii) I order certiorari quashing the decision reached by the Director that the Applicant is: (a) subject to the Schedule of the Prisons (Amendment) Law 2005: and (b) by virtue of 2(1 )(a) above not eligible to be released on parole. (iii) An order for mandamus that the Director determine the Applicant's eligibility for release on licence with reference to Section 2(1 )(b) of the Prisons Law (2005 Revision). Ms. McLean is at liberty to set down a hearing on the question of damages. However, before deciding whether or not to take that step, the Applicant may wish to carefully consider that it was not until May 2013 that the remission calculations were challenged by her. She may also want to have regard to the content of her signed declaration and acceptance of the terms of her transfer, the contents of which are set out paragraph II herein. In his oral submissions, Mr. Dilliway-Parry rightly highlighted that there was no authority to the effect that if the offence in the Schedule is termed as being one under a named Law of the Cayman Islands, in this case the Misuse of Drugs Law, the Director can simply adjudge it to be a specified offence by looking for "the 20130923 McLean v AG Judgment Page 24 of26 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
nearest equivalent." However, the parties made a number of submissions concentrating on the wider issue of whether any of, what they termed, "foreign offences" could be regarded as specified offences. The issue is not whether there is an offence, for which the Applicant is serving a sentence, for there clearly is one, but is it one that falls within the Schedule? The majority of the offences in the Schedule simply name the offence or define certain areas of criminal conduct and do not define by statute. Some of the offences in the Schedule will likely be termed the same in certain states, for example arson, rape, kidnapping, abduction, theft robbery, manslaughter. One might argue that for these clear offences that one could determine that they fall within the Schedule, for there is greater certainty that they are the same offence. However, there will be other offences which although having different titles or terminology in each state, will be of the same character, or will correspond to an offence in the Schedule. As the Legislature in the Cayman Islands has chosen a mixed Schedule by defining certain offences with reference to the Statute creating the offence and others only by areas of criminal conduct, it would not be appropriate to have two separate approaches to determine whether an offence is a specified offence. Having regard to the above, if proper consideration had been given to the position of repatriated prisoners when the Prisons Law was amended to introduce a different approach for offences included in the Schedule, one would have expected there to have also been a provision clarifying the Legislature's intention. In the absence of such a provision, it would be wrong to simply infer offences into 20130923 McLean vAG Judgment Page 25 of26 the Schedule. Clarity could be given by, for example, providing that the ·:tiJr~i!~I1" 2 offence which the repatriated prisoner was serving became a specilitld ol1imc(! 3 under the Schedule ifi! corresponded to one of the offences listed in the Schedul~, 4 It would then not matter whether the domestic offence was listed with reference tll 5 the relevant Statute or not in the Schedule. It would ensure a unified !tpproach 6 when relating 'foreign offences" to all of the domestic offences list~d ill the 7 Schedule. Most importantly it would give certainty as to the Intention of thl! 8 Legislature and put in place a proper mechanism for dealing with rtlpatriated 9 prisoners in the same way as domestic prisoners when it came to determining the 10 date for parole eligibility. 11 12 13 14 15 16 17 Dated this, I>' ~>k.y of September 2013. ........................................................... u ....................... . 19 The Honourable Mr. Justice Richard Williams 20 JUDGE OF THE GRAND COURT 21 20130923 Mdelln ~,AG Jtulgmellt