Here is another example of the interaction between criminal justice and national sovereignty. Samantha Orobator was convicted in Laos of possession of heroin and was sentenced to life imprisonment, commuted from the death penalty because she was pregnant. She has been sent back to Britain under the terms of a prisoner transfer agreement and is set to serve out her sentence in a British jail.
The story becomes interesting to this blog because Ms Orobator now proposes to appeal against the conviction, in the British courts. (Read a briefing by human rights campaigners Reprieve here.) Her lawyers will argue in the high court that she is being held unlawfully, and ask for a judicial review of the government order keeping her in prison. But whose law applies?
She was arrested, tried and convicted in Laos under Laotian law. In a world where criminal justice is organised according to the rules of national sovereignty, no-one outside Laos has any grounds to object to that. It is up to Laos how criminal justice is enacted there.
But now, Ms Orobator is in the UK, and so British law might now apply. If it doesn’t apply, then we have the rather peculiar instance of the extra-territorial application of Laotian law here in London. If it does apply, the human rights provisions that apply in the UK but not in Laos might now serve as Ms Orobator’s route to freedom.
And what would the Laotian government think of that? It thought it had an agreement with the British government that someone convicted in its courts would be duly punished in the UK. It would now find that the British government had made an agreement that it was itself unable to keep, under British (in this case, English) domestic law. Could the Laotian government apply to the high court to have Ms Orobator returned to Laos? If the courts were of the view that her conviction was unsafe in the first place and that she should not be in jail in Britain, they are hardly going to accede to a request to deport her back to prison abroad. I suppose the consequence might be that the Laotian government is a bit more circumspect in future about agreeing to further prisoner transfers to Britain.
It might be easier for the governments in the UK and Laos if the human rights issues raised in this case could somehow be ignored. But that’s the whole point about human rights: they can’t be switched off to suit political convenience. They apply everywhere and always. In a collision between human rights and national sovereignty, human rights wins. Or rather, that’s how it should be. It is the unfortunate need for organisations like Reprieve on the occasions when it doesn’t.