Sentencing - Jurisdiction - Life prisoners - Mandatory life imprisonment

R v Norman Hull: CA (Crim Div) (Lord Justice Pitchford, Mr Justice Wilkie, Judge Nicholas Cooke QC): 19 May 2011

The appellant prisoner (H) appealed against the determination of his ­minimum term of imprisonment ­following his transfer from prison in the Republic of Ireland to a prison in the UK.

H had been convicted of murder in the Republic of Ireland and was sentenced to ‘imprisonment for life’ under section 2 of the Criminal Justice Act 1990 (Ireland).

Early release from such a sentence was not set, but later authorised by the Irish minister of justice.

Before a parole review took place, H applied and consented to be transferred to the UK to serve the remainder of his sentence in an English prison under the Repatriation of Prisoners Act 1984.

His case was referred to the High Court under section 273(1) of the Criminal Justice Act 2003 for the making of an appropriate sentence.

Applying the decision in Re Khan (Setting of Minimum Term), [2006] EWHC 2826 (QB), the judge determined that the circumstances of H’s offending would have provided a starting point of a term of imprisonment of 30 years, but that such a sentence would exceed the period which H might reasonably have expected to serve in prison in the Republic of Ireland and that the appropriate term of imprisonment should be 18 years.

The issues for determination were whether: (i) the Court of Appeal had jurisdiction to hear appeals by transferred life prisoners against the setting of a minimum term by the High Court; and (ii) the imposition of a minimum term of 18 years’ imprisonment was excessive.

Held: (1) Although section 3 of the 1984 act did not provide a right of appeal against a life sentence provision in a warrant, for all other purposes that provision should be treated as of the same effect as if the sentence of life imprisonment had been made by a court in England and Wales.

Had such an order been made, a minimum term would have been set by the High Court and H would have enjoyed a right of appeal under section 9 of the Criminal Appeal Act 1968.

H enjoyed no right of appeal against the sentence of life imprisonment but, by virtue of section 274 of the 2003 act, he was entitled to appeal the minimum term set by the High Court.

Since the sentence of life imprisonment was to be treated for all purposes, save an appeal against it, as if it were an order made by a trial judge in England and Wales, one purpose for which it had to be so treated was the power of the Court of Appeal to quash and substitute a minimum term imposed after a decision on referral under section 273 of the 2003 act.

The right of appeal against the minimum term given by section 274 of the 2003 act would, in the absence of express provision, have been implied from the terms of section 3(4) of the 1984 act (see paragraph 39 of judgment).

(2) Article 10 of the Convention on the Transfer of Sentenced Persons 1983 (Council of Europe) bound the UK to the legal nature and duration of the sentence determined by the Republic of Ireland.

Accordingly, the sentence in the UK remained one of life imprisonment, R v Secretary of State for the Home Department Ex p Read (Gary John) [1989] AC 1014 HL applied.

It was not, therefore, the function of the High Court to simply convert H’s sentence as though it had been imposed in England and Wales, but to adapt his sentence for the purpose of its enforcement in England and Wales.

The task of the administering state when adapting a sentence was, so far as possible, to bring correspondence between the ‘punishment’ which would have been imposed in the sentencing state and the remainder of the sentence to be served in the administering state.

That required a reasoned judgment as to the likely duration of the custodial element of the sentence had the sentence been served in the sentencing state.

To that end, article 5 of the European Convention on Human Rights 1950 recognised that a transferred prisoner might, in consequence of different penal systems between member states, serve a longer period in custody in the administering state than he would if he had remained in the sentencing state.

In the absence of reliable information from the Irish Ministry of Justice as to the way in which its minister would have exercised his discretion to permit release, the judge had no alternative but simply to apply section 269 of schedule 21 to 22 to the 2003 act to his assessment of the minimum term.

Had that been the situation in the instant case, it would have led to the imposition of a minimum term of approximately 18 years imprisonment (paragraphs 42, 46-49, 51-53).

(3) (Obiter) Had it been necessary, the court would have interpreted section 274(3) and (5) of the 2003 act as meaning that the court was clothed with the same jurisdiction it enjoyed under sections 9 and 11 of the 1968 act to appeal against sentence to the Court of Appeal (paragraph 37).

(4) (Obiter) On the basis that the court’s interpretation of section 3(4) of the 1984 act was correct, then there was no reason in principle why the provisions of schedule 22 to the 2003 act should not apply to the case of a transferred prisoner referred to the High Court under section 273 of the 2003 act, Khan considered ­(paragraph 40).

Appeal dismissed.

Declan O'Callaghan (instructed by Russell-Cooke) for the appellant; John RWD Jones for advocate to the court.