Legality of Detention Pursuant to Prisoner Transfer Agreement when Original Trial Unfair

Orobator v HMP Holloway & Anor [2010] EWHC 58 (Admin) (20 January 2010)

In this case, the England and Wales High Court rejected a British citizen’s challenge to her detention in the UK after being convicted of drug offences in Laos.  While the Court accepted that the claimant had been treated unfairly, it was not satisfied her trial and conviction in Laos amounted to a ‘flagrant denial of justice’ such as to justify her release from prison.


The claimant, a British citizen, claimed she had been coerced by two Nigerian men, who assaulted and raped her, to smuggle 680 grams of heroin to Australia via Laos.  The claimant had attempted to discard the drugs at the Lao airport, however, was apprehended and then arrested by authorities.

The claimant, was convicted in Laos of exporting heroin, and was subsequently sentenced to life imprisonment.

The claimant consented to be transferred back to the UK to serve her life sentence pursuant to the Treaty between the United Kingdom and the Lao People’s Democratic Republic on the Transfer of Sentenced Persons.  After returning to the UK she was detained at HMP Holloway under the Repatriation of Prisoners Act 1984 (UK).

The claimant sought judicial review of the decision of the Secretary of State not to release her from detention. The claimant challenged her detention in the UK on the grounds that the trial in Laos was a flagrant denial of justice and a flagrant breach of art 6 of the European Convention of Human Rights.  She argued that as result her conviction was not by a ‘competent court’ within the meaning of art 5(1)(a) and therefore her continued detention in the UK was arbitrary and unlawful.


The Divisional Court (Dyson LJ and Tugendhat J) dismissed the application for judicial review, concluding that the claimant had not suffered a flagrant denial of justice.

Article 5(1)(a) of the European Convention provides that:

No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)           the lawful detention of a person after conviction by a competent court…

Article 6 of the Convention protects the right to a fair trial and provides the minimum rights that must be accorded to everyone charged with a criminal offence.

In order to establish that detention is unlawful under art 5 because art 6 rights have been violated, the ‘flagrant denial of justice’ test must be satisfied.  The relationship between art 5 and 6 was considered by Lord Phillips in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2009] 2 WLR 512 at [138]: 

the court has also held that if a ‘conviction’ is the result of proceedings which were a ‘flagrant denial of justice’, that is, were ‘manifestly contrary to the provisions of article 6 or the principles embodied therein’, the resulting deprivation of liberty would not be justified under article 5(1)(a): Stoichkov v Bulgaria (2005) 44 EHRR 276, para 51 

The applicant’s primary contention was that the lack of independence and impartiality of the judiciary in Laos, of itself, amounted to a flagrant denial of justice.

While the Court recognized that ‘judicial independence and impartiality are cornerstones of a democratic society and that their absence will without more involve a breach of art 6’, it rejected the proposition that a lack of judicial independence and impartiality, on its own, can amount to a flagrant denial of justice.  The Court considered that ‘even where the judiciary are not fully independent and impartial, it is possible for a trial to take place which does not involve the complete nullification or destruction of the very essence of the right guaranteed by article 6.’

After considering the circumstances of the trial, the Court accepted that the claimant was treated unjustly in Lao and opined that if she had been tried and convicted in a similar fashion in the UK a complaint under art 6 would have succeeded.  However, the Court concluded that the extent that the Lao court lacked independence and impartiality, did not of itself give rise to a flagrant denial of justice.  It also concluded that other factors relating to her trial and conviction did not amount to the high standard of a flagrant denial of justice.

The Court noted the significance of the public policy reasons for setting the flagrant denial of justice test very high:

The test is rightly set very high.  That is because it is important not to jeopardise or undermine the treaties for the repatriation of prisoners which the UK now has with many countries, so that those who are convicted abroad can serve their sentences here.  If persons who have been convicted and sentenced abroad and have procured their transfer to the UK were easily able to obtain their liberty by challenging the fairness of their convictions, there would be a grave danger that these important treaties would be set at nought.  That would be highly regrettable.

Under s 273 of the Criminal Justice Act 2003 (UK), the Court is required to make a sentencing order for ‘transferred life prisoners’.  The Court considered that under UK law the claimant, as a drug courier, would be given a determinative sentence of seven years.  However, after taking into consideration a number of mitigating factors such as the threats and coercion the claimant was subjected to, her history of mental health problems, her history of sexual and physical abuse from men and the appalling conditions of her custody in Laos, the Court set a minimum term of 18 months imprisonment.

Relevance to the Victorian Charter

It should be noted that Australia has an International Transfer of Prisoners scheme which is regulated by a federal legislative framework.

However, the case does have general relevance for the interpretation of s 24 of the Charter which protects the right to a fair trial and provides guidance in relation to what is required to establish that there has been a flagrant denial of justice.

The decision is available at

Prabha Nandagopal is on secondment to the Human Rights Law Resource Centre and Amnesty International from DLA Phillips Fox