Repatriating prisoners: This is not a free lunch

1. The proposed construction of Jamaica's newest prison by a foreign government has attracted a series of observations, most of which have rightfully raised serious questions of economics and law, and the minister of national security has made it clear that we are yet to ratify the treaty that would facilitate the transfer of Jamaican prisoners who are in UK prisons. Of course, this is about economics as much as it is about constitutional issues, but it depends on who is talking. You can be in agreement with the need for a new prison but disagree with this proposed construction.

2. The starting point for me is not to remind readers that the UK's National Audit Office in an October 2014 report expressed significant concern over the fact that the British government spends £850 million annually on foreign national offenders, but rather to remind readers that Britain does have a Repatriation of Prisoners Act 1984 which sets out clearly the circumstances by which the British state can effect the transfer of a prisoner from its jurisdiction to a receiving jurisdiction. Equally, a foreign national prisoner (FNP) can make an application to be repatriated.

How Does It Work?

3. Before understanding how a Jamaican national might be repatriated, we must note that in the UK, under the UK Borders Act 2007, any foreign national residing in the UK who has been sentenced to a custodial sentence for 12 months or more is given an automatic deportation order. A Jamaican national against whom a deportation order (DO) has been made does have a right of appeal, and if his/her appeal is unsuccessful, the UK government will deport that person to Kingston or Montego Bay, despite the length of time the person has resided in the UK. Once the person is not a British citizen, that person can be deported, with the UK government paying for the space on the flight. The act of deporting an FNO only takes effect once the person has reached the halfway point of his sentence and theoretically is scheduled to be released on licence into the community and it is shown that he has more than six months remaining on his sentence.

4. The British government, despite having the Repatriation of Prisoners Act 1984 (RPA), has been understandably concerned with the number of FNOs because of the significant annual costs to the Treasury. This figure includes not only the costs of removing or deporting an FNO, but equally the costs of holding those persons in prisons, some of whom will have mental-health or other medical complications, which the State will be obliged to address.

5. Therefore, we must ask: Why not use the RPA and effect removal and just reduce the costs to the British taxpayer. Well, it does not work like that. The UK government can only, in the first instance, issue a repatriation warrant where there is an international agreement between the UK and the State to which the person is being transferred. There are other factors, but in the context of its relationship with Jamaica, we do know that Jamaica signed a prisoner transfer agreement with the UK but up to October 2014, that agreement was awaiting ratification from the Jamaican Government. Therefore, the minister should have disclosed the full content of the MOU to the Parliament, telling us that we should await the establishment of the Special Select Committee.

6. The importance of such a disclosure is underlined by the fact that the RPA makes it clear that it cannot take effect where the agreement does not make provision for the prisoner to consent. We do know that within the EU, there has been a move among EU countries to draft transfer agreements that do not require the prisoner's consent. The consent of the FNO is crucial, as the British minister of justice cannot sign the warrant if he is not sure that the terms of the warrant have been explained to the FNP in his own language (Patois, if necessary), as once consent has been given, it cannot be withdrawn.

Consent or No Consent

7. Those who have debated this issue in Jamaica have asked the important question, how can it be lawful for a person to serve a custodial sentence in Jamaica for a crime that was never committed in Jamaica? The simple answer to that is that the consent of the FNO and the ratified treaty provide the lawful basis, such that the right-to-liberty provision in the Jamaican Constitution is not breached, as one can always consent to limitations on his/her liberty. However, more recently, and since the enactment of Section 44 of the Police and Justice Act 2006, there has been a positive shift on the part of the UK government to sign PTAs with other EU member states that do not require the consent of the prisoners. Therefore, this raises the important question that the Jamaican Government cannot escape: Have we made it clear to the British that one of the red-line issues is that we will not sign an agreement where the prisoner's consent is not required? If we accept anything less, it would mean that once a Jamaican national (despite the length of time that he has been outside of Jamaica) has been sentenced for a criminal offence and there is no outstanding appeal, the British Ministry of Justice could make use of the provisions of the treaty and the RPA.

8. From an economic perspective, we know that the average cost of accommodating an FNO in the UK is £70,000. When the PTA comes into effect, the British government will see, according to the UK's National Audit Report, significant savings, as its FNO population will be reduced. That is the British government's objective and Cameron should not be criticised for that. The Jamaican Government must now tell the Jamaican people how it proposes to pay for this proposed unnatural increase in the nation's prison population. Someone from the Jamaican Cabinet seems to have forgotten the adage: There is no free lunch. The minister says that he has negotiated an additional £5.5 million, but what he did not say is how he arrived at that figure, as I am somewhat doubtful that he has factored into that figure the following costs: increased numbers of parole hearings, increased costs to the Ministry of Health, as some of these persons will have mental-health challenges, and the attendant costs to have mental-health appeals.

Prison Terms and Parole

9. There are potential constitutional issues related to the administering of the sentence that was imposed by the sentencing state (UK). We do not know which of the two available enforcement mechanisms will be used. The first is known as continued enforcement of sentence by which the receiving state (Jamaica) is obliged to retain the nature and duration of the sentence that was imposed by the British criminal court, with the standard practice that if the UK maximum for the offence is lengthier than the Jamaican maximum for the equivalent offence, the prisoner's sentence will be reduced to the Jamaican maximum. The second option is known as the conversion of sentence, by which the receiving state (Jamaica), in effect, resentences the person applying local Jamaican sentencing principle, but giving regard to time previously spent in the UK. The problem that one can predict is that there are some fundamental differences between Jamaica's criminal law and that which obtains in the UK in some instances, and there are offences in the UK which are yet to be created by the Jamaican Parliament. The question that the opposition leader should be asking the minister is this: Was an audit of the differences in offences between the two countries done to inform the minister of foreign affairs and the PM in their discussions? This is not something that requires a committee, as the Ministry of Justice could have this done in a matter of days.

10. Of course, the issue of the archaic nature of Jamaica's Parole Act and its mental-health law will be brought into sharp focus, as some of these persons do have such problems, and we do know that our penal system is replete with examples of how ineffective it can be when dealing with inmates who have mental-health challenges. The minister of health must be pulled into this discussion. It is a public secret that our mental-health appeal system has not been truly functioning for some time, which is a clear potential breach of the rights of these potential prisoners who will be sent back to Jamaica.

11. There are unanswered economic and legal questions that the PM and her key portfolio ministers must address as she celebrates the receipt of a spanking new prison.

- Matondo Mukulu is a practising public-law barrister and former acting public defender. Email feedback to columns@gleanerjm.com and matondo_mukulu@yahoo.com.