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CIHRC CASE 1/07 — An Dries Van Tongeren Final Report of the Cayman Islands Human Rights Committee

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    Reception of Complaint

  1. 1. On the 4th January 2007 the complainant telephoned the Human Rights Committee ("HRC") and requested that the HRC investigate his case. Subsequent to further emails and phone conversations that were received in the first two weeks of January by the HRC, an interview was conducted between the complainant and a representative of the HRC on the 19' January 2007 at Her Majesty's Prison Northward. The full HRC considered the petition on 24th January 2007. The preliminary assessment confirmed that the matter warranted further investigation. Accordingly, the HRC accepted the petition and assigned it a case number. On the 23rd February 2007 a letter was sent via facsimile and postage to the complainant outlining the human rights issues identified by the HRC and requesting permission to contact the complainant's Attorney for further information. With the complainant's permission, the Attorney was contacted and various correspondence and written submissions that had been submitted to the Grand Court were disclosed to the HRC. An update was provided to HRC at its subsequent monthly meetings. This Final Report was approved by the Committee on 29 July 2008.

    2. Background

  2. The complainant was arrested and charged with importation of marijuana, on the 10th November 2004, after 172 packets (226 Ibs) of the substance were found in the fuel tanks of the yacht in which he was Captain. He pleaded guilty to possession with intent to supply marijuana on the 11th November 2004. However, following laboratory analysis of the packets, a bag containing 1580 Ecstasy tablets (13.8 ounces) was discovered. Despite both substances being found in the same consignment, charges in relation to the Ecstasy were not laid until the 14th February 2005. The importation of Ecstasy charge was committed to the Grand Court, whereupon the Crown entered a nolle prosequi ("we shall no longer prosecute"). The matter was delayed further as this stage as the Crown sought to proceed instead with the Ecstasy charges in the Summary Court. On the 13th December 2005, the complainant pleaded guilty in the Summary Court to possession with intent to supply Ecstasy. He was sentenced to 7 years imprisonment in December, 2005, which was reduced, following an appeal on the 16th June 2006, to 5 years, with 'time served to be taken into account'.
  3. The complainant had been in custody since the 10th November 2004 and when he approached the HRC had served 35 months of his 5 year sentence. The complainant had been advised by HMP Northward officers that he was not eligible for parole until he had served at least five – ninths of his sentence. This advice is in accordance with the Prison (Amendment) Law 2005.

    4. Nature of Complaint

  4. The argument put forward by the complainant was that due to the delay in the matter being brought to court and delays in regards to his sentencing, he fell under the Parole arrangements in the Prison (Amendment) Law 2005. Under the former Prison Rules, notably section 25 (1) of the Prison Act 1952 and Rule 5 of the Prison Rules 1964 (SI 1964/388), the complainant could have been eligible for parole after serving one third of his sentence. The application of the harsher parole regime in his case, the complainant contended, amounted to retrospective criminal penalty.

    5. Application of International Human Rights Law

  5. Where it is necessary for the HRC to assess the merits of any formal complaint, this is undertaken with reference to the standards established in relevant international human rights treaties. In this Case, of particular relevance is the European Convention on Human Rights ("the Convention"). However, the principles enshrined in the Convention are also reflected in similar terms in other important international human rights treaties, which have broader application. The International Covenant on Civil and Political Rights ("The International Covenant"), and which has also been extended to the Cayman Islands, also contains articles relevant to this complaint, as does the Universal Declaration of Human Rights ("UDHR").
  6. On 24th February 2006 direct petition to the European Court of Human Rights in Strasbourg was re-extended to the Cayman Islands. Accordingly, rights afforded under the Convention can be directly invoked by inhabitants of these Islands in the European Court of Human Rights. Additionally, the case law relating to the interpretation of rights under the Convention is more developed than under the other international instruments. It is for these reasons that the Convention is of particular relevance in this case and that the complaint has been primarily considered against a background of its provisions.
  7. The relevant article of the Convention is Article 7.

    Article 7 of the Convention provides:

    • (1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

    Although this Final Report primarily focuses on the interpretation of this right in the Convention, it should be noted that a similar provision can also be found in Article 15 of the International Covenant and Article 3 and Article 11 of the UDHR.

    Article 15 of the International Covenant provides:

    • (1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. lf subsequent to the commission of the offence, provision is made by law for a lighter penalty, the offender shall benefit thereby.

    Article 11 of the UDHR provides:

    • (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
  8. Unlike the situation in the Cayman Islands, the rights contained in the Convention may be applied and enforced in the United Kingdom's domestic courts, following the enactment of the Human Rights Act 1998. The leading case in the United Kingdom is Regina v Secretary of State for the Home Department (Appellant) ex parte Uttley (Respondent) (2004) UKHL 38. The respondent in this case had been accused of various sexual offences prior to 1983. However, he had not been prosecuted for these offences until 1995. The respondent, having pleaded guilty to some of the offences and convicted of others, received a total of 12 years imprisonment. The respondent sought a declaration that the new rules for release, which he had been subjected to, were incompatible with Article 7(1) of the Convention. The basis for this argument was that the practical consequences of the respondent's sentence differed significantly from those that would have followed had he been sentenced to 12 years imprisonment in 1983, due to the introduction of a new "release regime" under the Criminal Justice Act 1991, which had come into effect on 1st October 1992. The respondent argued that under the previous regime, contained in the Prison Act 1952 and the Prison Rules 1964, he would, subject to good behaviour, have been released on remission after serving two-thirds of his sentence. Despite being released after two-thirds under the 1991 Act, the respondent was released 'on licence' until he had served three-quarters of his sentence, which along with other measures, placed him under supervision and imposed restrictions on his freedom that were incompatible with Article 7(1).

    However, following the reasoning of the Privy Council in Flynn and Others v Her Majesty's Advocate (2004) UKPC D1, the House of Lords affirmed that Article 7 (1) will only be infringed if a sentence is imposed on a defendant that constitutes a heavier penalty than that which "could " have been imposed on the defendant under the law in force at the time that his offence was committed. In the respondent's case, a sentence of life imprisonment "could" have been imposed for his conviction and as a consequence, Article 7 (1) had not been breached.

    This reasoning was later confirmed in R v William Joseph McGuigan (2005) EWCA Crim. 2861. The Court of Appeal held that provisions enacted between the original offence and sentencing did not amount to an additional liability imposed in breach of Article 7 (1) of the Convention. The Court of Appeal stated that there was no justification to depart from the House of Lords's judgement in Uttley and that "there was no issue upon which Article 7 of the Convention could bite."

    9. Conclusion

  9. Following the reasoning in the aforementioned cases, the HRC concluded that no violation of Article 7 of the Convention, or any of the similar provisions in the other relevant international human rights treaties, had occurred in this case. The HRC acknowledges that the delay in the complainant's matter coming to court and his sentencing rendered him susceptible to the new sentencing regime and as a result, a longer period being served before he was eligible for parole, however and in accordance with the leading case of Uttley, the complainant's sentence was still in the range available under the old regime, notably section 25 (1) of the Prison Act 1952 and Rule 5 of the Prison Rules 1964 (SI 1964/388), and therefore was not a breach of his rights under the aforementioned international instruments, notably Article 7 on the Convention.
  10. The HRC would also wish to note that the delay in bringing all the charges against the complainant was partially due to the late discovery of the Ecstasy tablets and as a result would be considered justifiable.

    11. Important Note

    It is the intention of the HRC that this report be read as a complete document. Further, the HRC hopes that those desirous of quoting from its contents or attempting to summarise it will not do so without making sure they fully place any comments or quotations in their context. To do otherwise may create an entirely misleading impression.