Steven Michael Willcox application to the

High Court for Judicial Review to be heard 23rd April 2009.

As a result of all the media interest in Steven’s case, it has been noted that there has been some error made in the reporting.   Steven would like to clarify what his case is about.

Steven's case is NOT an appeal against sentence.  The British Courts has no jurisdiction to re-sentence him.  Steven has submitted an application for judicial review to have the Secretary of State’s decision to enforce his Thai sentence under the terms of the Thai/English Bilateral Prisoner Transfer Treaty (PTA) REVIEWED.

It will be submitted on Steven’s behalf that the Secretary of State’s decision to enforce his Thai sentence is incompatible with the European Convention on Human Rights (ECHR) under Article 3, 5, 6 & 8 for the reasons below:-

Article 3 – Steven’s Thai sentence is disproportionate to the offence he committed and amounts to inhumane and degrading punishment.

Article 5 – Steven’s sentence is arbitrary.  Had he received a Thai life sentence, upon his repatriation to England, his case would have been referred to the High Court for his tariff to be fixed.  This inevitably would have resulted in him being eligible for release shortly after his repatriation (see below).

Article 6 – Due to an irrebuttable presumption in the Thai law that the drugs found to be in Steven’s possession were for distribution (see below), the sentencing procedure in Thailand was procedurally unfair.

Article 8 – The period of detention to be served by Steven is disproportionate to the aim.

The High Court is being asked to remedy the breach by ordering that Steven’s warrant of transfer be varied to ensure the term of imprisonment he has to serve complies with the ECHR.

Steven's case is very unique.   Although Steven pleaded guilty to possession of heroin and ecstasy for distribution, there was no evidence to suggest he intended to distribute the drugs.  

Steven entered a guilty plea after he was correctly advised by his Thai lawyer that if he pleaded not guilty he would be convicted of possessing the drugs for distribution and be sentenced to life imprisonment.  This is because under s.15 of the Narcotics Act 1979 to possess any amphetamine or derivatives of amphetamines (ecstasy) of 1.5 grams net weight or above is possession for distribution.  Similarly possession of narcotics within category 1 (heroin) of 3 grams of pure substance or above is possession for distribution.

Whilst Steven possessed the heroin and ecstasy for his own use, due to the irreputtable presumption contained within s.15 of the Narcotics Act, he was faced with the decision whether to plead not guilty and inevitably be convicted of possessing the drugs for distribution which would have attracted a sentence of life imprisonment, or to plead guilty and obtain a reduction in his sentence.   As a result of his guilty plea, the Thai Court reduced Steven’s life sentence by one third to 33 & 4 months*.

Under the terms of the PTA, once Steven had served 4 years of his sentence in Thailand he was eligible to be repatriated to England.

Had Steven received a life sentence from the Thai Court, upon his repatriation to England, his case would have been referred to the High Court for his tariff to be fixed.

There is only one British prisoner who has been repatriated from Thailand with a life sentence.  The female was convicted of smuggling 4.52 kilos of 100% purity of heroin.  Upon her repatriation to England her case was referred to the High Court for her tariff to be fixed.   Her tariff was not fixed according to Thai sentencing standards, but by reference to English Court’s sentencing guidelines.  Her tariff was fixed at 4 years, which meant she was eligible for release shortly after her repatriation (see http://www.hmcourts-service.gov.uk/cms/144_7223.htm).

If Steven had received a Thai life sentence, upon his repatriation, his tariff set by the High Court inevitably would have been less than 4 years.  It is unlikely he would be in prison today.

Many British prisoners detained in Thailand with determinate sentences who are eligible to be repatriated to England, refuse to do so as they do not agree they should be forced to spend longer in prison than someone given a Thai life sentence. 

As a result of Thai Amnesties in 2006 & 2007, Steven’s Thai sentence was reduced to 29 years & 3 months.   He is due to be released on 5th December 2017.  His sentence will expire on 20th March 2032, which is when he will remain on licence until.

If Steven had been convicted by the Thai Court of only possession of the drugs, upon his repatriation to England, his warrant of transfer would have had to specify a period of imprisonment of 7 years (less the time Steven had served in Thailand). The Secretary of State cannot enforce a sentence which exceeds the maximum sentence available in England for the equivalent offence.  The maximum sentence in England for possession of a class A drug is 7 years. 

Unfortunately, the Prisoner Transfer Agreement between England and Thailand does not allow for a prisoner’s sentence to be adjusted upon their repatriation to England unless their foreign sentence exceeds the maximum sentence available in England for the equivalent offence (not the maximum sentence an English Court would impose for the equivalent offence as in reality this would be far less than the maximum sentence available).  Where the prisoner’s sentence exceeds the maximum sentence available in England for the equivalent offence, upon repatriation the period of time the prisoner must serve in prison is adjusted to the maximum sentence available in England for the equivalent offence (see above example).  However, some countries have Prisoner Transfer Agreements with Thailand which allows for all prisoners sentences to be adjusted upon their repatriation to the conditions of the country to which they are repatriated.  An example of this is the Prisoner Transfer Agreement between Thailand and Sweden details of which can be found at http://www.regeringen.se/sb/d/2710/a/15452 (see Transfer of penalties to and from Thailand half way down the page).

No cases similar to Steven's have been considered by a British Court since the introduction of the ECHR.

(* Whilst Steven’s total Thai sentence was 33 years and 6 months, his sentence for possessing heroin and ecstasy for distribution and possession of methamphetamine was 33 years and 4 months.  He also received an additional 2 months imprisonment for possession of marijuana.  All convictions relate to the same occasion).