French Customs Fines (Prison Sentences) (Hansard, 2 July 1993)

§ Mr. Neil Gerrard (Walthamstow)
The subject of the debate affects a fairly small number of people, but it affects them seriously. They are people who are held in French prisons for the non-payment of customs fines. According to an answer that I received in February from the Foreign and Commonwealth Office, about 80 people are currently held in French prisons for that reason, and some of them will spend up to two years in prison after the expiry of the normal sentence.
I have some concerns about the provisions of the French penal code, but that is not the responsibility of the House or the Foreign and Commonwealth Office. Therefore, I shall concentrate on the impact on British prisoners and deal especially with how they are treated differently from French nationals and how the Foreign and Commonwealth Office could provide assistance, either through representations and negotiations with the French Government or directly to individuals via consular officials in France.
I shall explain a little of the background to the debate. Under French law, a person convicted of a drugs-related offence suffers a customs fine in addition to, usually, a prison sentence. The amount of the fine is related to the street value of the drugs that have been seized, and we are aware of fines of up to £392,000. Therefore, large amounts can be involved. If, at the end of the prison sentence, a person is unable or unwilling to pay the customs fine, he may spend up to another two years in prison in lieu of payment. We are not debating the seizure of assets from drug trafficking. I shall draw an analogy with our own law. Earlier this week, we debated the Criminal Justice Bill [Lords] which will change the provisions for the seizure of assets from drug trafficking. It allows courts to make assumptions that assets are the proceeds of drug trafficking, and the person who holds them has to prove that they are not. That is not the question here. The debate is not about the seizure of assets.
A drug courier, who does not necessarily stand to make a large amount of money from trafficking, may face a very heavy fine that is not related in any way to his money or to profits that he may have made. I am not in any way trying to defend drugs trafficking; nor am I debating the length of prison sentences. I am certainly not saying that anyone should be able to keep the illicit proceeds of drug trafficking or that couriers do not matter—that it is only the large dealers who matter—because many hon. Members, especially those who represent London constituencies, are aware of the problems caused on their streets and council estates by small-time dealers.
My argument is that the penalty should fit the crime, people should not be doubly punished for the same offence and all prisoners should be treated alike. British prisoners should not get different—or worse—treatment from that afforded to French nationals. I intend to refer mainly to the latter issue, because it is relevant to the responsibilities of the Foreign and Commonwealth Office.
I shall mention certain individuals, but I do not intend to use the debate to plead their case. I do not intend, either, to name those individuals. It would be wrong to do so, for it was impossible in the short time available before this 1292 debate to obtain their permission to name them. By pointing to individual cases, however, I hope to show what is happening. Some of these cases will be known to the Foreign and Commonwealth Office and consular officials.
Those cases will also be known to Prisoners Abroad, an organisation which is supported by the Foreign and Commonwealth Office; prisoners in foreign prisons are referred to it. The main concern of Prisoners Abroad is to provide support for people who are in foreign prisons and for their families. It is not the organisation's concern to plead the innocence of those people. Its role is to ensure that prisoners are treated fairly and to give them advice and, where necessary, access to legal representation. In particular, its role is to help families in this country. The concerns that I shall mention are shared by Prisoners Abroad, and they have been raised on previous occasions with the Foreign and Commonwealth Office.
I intend to concentrate on four main areas of concern. The first relates to people's ability to pay and their ability to prove insolvency. Secondly, the question of parole may arise. Thirdly, there is the question of transfer to British prisons. Fourthly, in one or two cases, there is the question of the retrospective nature of what appears to have happened.
As for insolvency, it is generally accepted, I believe, that we tend not to imprison people for debt. We certainly imprison people who refuse to pay, but we try to avoid imprisoning people for debt. The French authorities appear to accept the principle that prisoners who are serving prison sentences in lieu of customs fines can be released on proof of insolvency. The fine is waived and they are released.
The specific problem that affects British prisoners is proof of insolvency. The documents that are normally required by the French authorities include, for example, letters from tax offices or from the mayor. To some degree, that reflects the French local government system. When British prisoners attempt to provide that documentation, they often have difficulty in obtaining the relevant documents. Tax offices do not find it easy to produce letters that meet the requirements of the French authorities. In a number of cases, British mayors have refused to have anything to do with requests to provide letters. Under our local government system, mayors are in a different position from that of mayors in France. British mayors do not want to be involved in these matters.
Even when documents are obtained, there can still be difficulties. I want to refer to a few cases. The first concerns a British woman who has served seven years in prison in France for a drugs offence. She is now faced with a customs fine. She has no money with which to pay that fine. Her only relative in this country is an elderly father who is on a state pension. She has been in prison, in lieu of the fine, since September of last year. She has assembled the documentation to prove insolvency, a task which is not easy to accomplish from inside prison.
The case of that woman—that she should be regarded as insolvent—has been heard twice. However, French customs have now changed tack. They now argue that a person who is in prison for a drugs offence is prohibited from applying for a declaration of insolvency. She has now applied to the French supreme court, but has been told that it is likely to be over a year before her case is heard. She will, therefore, have to spend another year in prison before her case is heard. When a friend offered some money, customs said, "It isn't possible to have it both 1293 ways. If you apply for insolvency, we will not take any account of that offer of money until your case has been heard in the supreme court." That person is stuck in prison, completely unable to pay her fine, and with no prospect of being released within the year.
My second example is of a man who has served four years. He assembled the documentation to prove insolvency, went to court, and won his case last November—but, because that decision was appealed against, he remains in prison waiting for the appeal to be heard. I could quote many similar cases.
One obvious concern is whether the documentation required of British prisoners is appropriate. Another is the assistance that the Foreign and Commonwealth Office can give in helping to obtain that documentation, and in discussing with the French authorities whether it is appropriate anyway, and possible alternatives.
It seems that British prisoners are prevented from following a procedure in the French penal code. The first case that I cited is a good example, and it may be challenged at European Commission level. That issue also is one which the Foreign and Commonwealth Office should consider.
French prisoners in similar situations are often able to obtain parole. Agreement is reached that they will spay a proportion of the fine, be released, and then settle the rest of the fine over a period of time—with penalties if they do not adhere to the arrangement. I am aware of only one case in which such an arrangement has been agreed in respect of a British prisoner. In general, such agreements are refused—and British subjects remain in prison and unable to secure parole, when it is granted to French nationals.
A convention exists for the transfer of sentenced prisoners from a foreign country to their own country. That is often in their interests and in the interests of their families, with whom they are then able to maintain proper links. Serious difficulties arise with France. The Foreign Office knows of only one such transfer from a French prison since 1985—and I do not believe that it related to a case that involved a customs fine. Anyone with outstanding fines is not usually allowed to transfer—the convention makes some reference to that. It could be argued that the convention prevents such transfers.
I know of a case of a British national with an outstanding fine who was allowed to transfer from a prison in the United States after signing a promisory note that the fine would be paid in due course. The British Government have a role to play in actively pursuing with the French arrangements such as those available in the United States, which allow prisoners to transfer to this country. They do not in any way let prisoners off their sentences, but permit them to be in prison nearer their families and relatives.
My final point is whether recognised canons of justice are being followed. I believe that the Foreign and Commonwealth Office argues that it cannot interfere if a trial was conducted in accordance with the normal cartons of justice.
Last year, Prisoners Abroad wrote to Lord Donaldson about customs fines. It suggested that European law forbids the imposition of a customs fine for the trafficking of illegal drugs and that France has already been censured twice by the European Court of Justice for breaking that law. The first question is whether customs fines are legal, and whether what is happening is a back-door attempt to 1294 levy duty, in the way that a levy is imposed on legal goods. Clearly, narcotics are not legal and one would not expect duties to be levied on illegal goods.
There is also the issue of the restrospective nature of some sentences. I raised with the Minister in May the case of a British prisoner who had been sentenced to 10 years. At the time that he was sentenced, he had been told that there would be a customs fine and, in lieu of payment of the fine, a sentence of four months' imprisonment. During the period of his sentence, French law changed and the period in lieu of customs fines was increased from four months to two years.
The Foreign Office appears to believe that that did not constitute a retroactive step. In a letter dated 20 May, the Minister said: As our consular staff have already explained … the change in the law … was not retroactive and did not apply to those persons whose sentences were final. As his case was still under appeal his sentence was not final and the new law therefore applied. I draw the Minister's attention to article 7 of the European convention on human rights, which says: Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed"— not whether the sentence had been passed or whether the case was still being considered but at the time the criminal offence was committed. I argue that, in this case, there was a breach of article 7 of the European convention and that a retroactive penalty was imposed. In addition, the person concerned was not informed of the change in time to be able to pursue an appeal.
I am now aware of another case concerning not a British prisoner but a Brazilian who is in prison in France. His case is now going to the European Court of Human Rights, which will consider the retroactive nature of the change.
In essence, the argument that I should like the Minister to address is that customs fines have an impact on British nationals; that British nationals are treated differently from French nationals; and that there are questions about whether the system is even legal—certainly questions about whether the retroactive nature of the sentence is a breach of the European convention on human rights.

§ Mr. Harry Cohen (Leyton)
My intervention will be brief. I congratulate my hon. Friend on raising this important issue. I draw his attention to the case of my constituent, Mr. Humphries of Onra road, who has been in a French prison since 14 October. I have received letters from the Foreign Office saying that the case involves a very protracted investigation, which it supports. In the meantime, my constituent can get no urgent legal representation. His wife is, of course, extremely distressed and is convinced that her husband is innocent. She wants justice to be done, but she can get no support from the Foreign Office. Is that common in the cases to which my hon. Friend is referring?

§ Mr. Gerrard
Delay is certainly a common element to many cases. I mentioned the British woman who may end up finishing her sentence, or getting close to it, before the case is decided. I ask the Foreign Office to take a more active role to confront the problems in the cases that I have mentioned and that to which hon. Friend the Member for Leyton (Mr. Cohen) has drawn attention. The 1295 Government should be prepared to discuss the general issues with the French Government, such as the questions of transfer, parole and documentation, and should give as much help as possible to the individual involved, through consular officials.

§ The Minister of State, Foreign and Commonwealth Office (Mr. Douglas Hogg)
I know that some hon. Members would like to leave the House at 3.10 pm to catch a train and I shall do my best to facilitate that. It means that I shall have some difficulty in responding to all the points, and my hon. Friend the Under-Secretary of State will be writing to the hon. Member for Walthamstow (Mr. Gerrard) on matters not covered by me.
I wish to make two preliminary points. First, as the House may know, three years ago, I was a Minister in the Home Office where I had responsibility for the conduct and co-ordination of policy on drugs. I have also been a barrister for some 25 years. In both capacities, I have developed a very unsympathetic approach to those who are convicted of drug offences. That is especially true where the conviction involves trafficking in hard drugs.
Secondly, as a general proposition, the criminal law in France is a matter for the French Parliament, not for us. There are only a very few circumstances in which I would be ready to interfere, and I shall give some examples. First, in circumstances where there is a reason to suppose that the conviction may be unfair or that a sentence is disproportionate, the Government might want to intervene.
Secondly, there may be cases where there are special reasons—for example, humanitarian reasons—in which it would be right to ask the French authorities to take a lenient and compassionate view. That said, however, the general proposition must be that where people infringe the law of a democratic and civilised country with which we have friendly relations, and are punished in accordance with the law of that country, they have no one to blame but themselves, and they must not expect us to bail them out. Indeed, it is for them and their legal advisers to determine the courses of action that are appropriate for them.
We are, of course, aware of the problems to which the hon. Gentleman referred, such as the requirement in certain circumstances to serve civil imprisonment in lieu of 1296 payment of customs fines in respect of various offences. That proposition applies to French prisoners as it does to British prisoners. The fines are based on the street value of the drugs involved and can attract civil imprisonment of periods from five days up to a maximum of two years if they are not paid. In our experience, anyone convicted of a drugs trafficking or smuggling offence receives a fine as part of his sentence, whatever his nationality.
Prisoner transfer can be arranged under international agreement between the United Kingdom and other signatory countries. The Council of Europe convention on the transfer of sentenced persons was ratified by the United Kingdom in April 1985 and by France in February 1985. The intention is that, if certain conditions are met, prisoners can apply to serve the remainder of their sentences in their own countries, close to their families and in a familiar environment.
There are two British prisoners in France whose applications for transfer to prisons in the United Kingdom are outstanding. Both were convicted for drug-related offences involving substantial quantities. Both have settled their outstanding customs fines, including the negotiation of a substantial reduction in at least one of the cases. Their transfer applications are being considered by the French authorities. Under the terms of the convention, the sentencing or the receiving state can withhold agreement to transfers and need not gave the reason why.
When prisoners cannot get a hearing, our consular authorities in Paris will, of course, take the matter up with the Ministry of Justice. That is appropriate. Prisoners Abroad will help with the documentation. Towards the end of a prisoner's criminal sentence, it is, in practice, usually possible for considerable reduction in the fine to be negotiated with the customs authorities. If a prisoner can prove insolvency, it is sometimes possible for civil imprisonment to be waived entirely. However, it is for the prisoner in question to prove the insolvency, which he or she can do by taking appropriate legal advice.
The hon. Gentleman raised a range of other issues. I have dealt with the generality of the matter. People should respect the domestic laws of the countries in which they are, especially if those countries are democratic and friendly. They must not come to us if they are convicted of substantial offences and expect us to bail them out, because we will not.