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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cahill, Re Application for the Setting of A Minimum Term  EWHC 4025 (Admin) (20 December 2013)
Cite as:  EWHC 4025 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Application by
for the setting of a minimum term pursuant to
s.273 Criminal Justice Act 2003 and
s.82A Powers of Criminal Courts (Sentencing) Act 2000
Crown Copyright ©
MR JUSTICE SILBER:
"to afford each other the widest measure of cooperation in respect of the transfer of sentenced persons in accordance with the provisions of [the] Convention".
"1. The competent authorities of the administering State shall:
(a) Continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or
(b) Convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.
2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.
3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions ..."
"1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.
2. If, however, the sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State."
"1. In the case of conversion of a sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:
(a) shall be bound by the findings as to the facts in so far as they appear explicitly or implicitly from the judgment imposed in the sentencing State;
(b) may not convert a sanction involving deprivation of liberty to a pecuniary sanction;
(c) shall deduct the full period of deprivation of liberty served by the sentenced person; and
(d) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering state may provide for the offence or offences committed.
2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure."
"Declaration contained in a letter from the permanent representative of the United Kingdom, dated 30 April 1985, handed to the Secretary General at the time of deposit of the instrument of ratification, on 30 April 1985.
The United Kingdom intends to exclude the application of the procedure provided for in Article 9(1) (b) in cases when the United Kingdom is the administering state.
Period covered: 1/8/1985 –
The preceding statement concerns Article(s): 3,9."
The Evidence from the Republic of Ireland
"For these reasons the appeal will be dismissed. It seems to this court that where transfers are made of mandatory life prisoners either from the Republic of Ireland or from any other Convention country with a similar statutory regime, the High Court will be assisted by the best possible information from the sentencing country as to the likely date of release of the prisoner in that country. Precision may not be possible and a range may be all that can be provided having regard to the wide variety of factors which can affect both the seriousness of the offence and the risk of re-offending. Furthermore, as Finlay CJ observed in Director of Public Prosecutions v Tiernan  ILRM 149 at 153, policy as to release on temporary licence may change with changes in the executive. The better the quality of information from the sentencing state the more likely it is that a judge in England and Wales can achieve the Convention purpose of correspondence."
(a) what Pitchford LJ described as "the best possible information from the sentencing country as the likely date of release of the prisoner in that country" and of course if that is not possible a range would be of value setting out the relevant factors;
(b) details of how long Mr Cahill was held in custody in Ireland; and
(c) any findings of fact made by the trial judge in Ireland relating to Cahill's offence.
a) No minimum term is set for life sentenced prisoners in the Republic of Ireland.
The average time a life sentenced prisoner spends in custody in their jurisdiction before being released into the community under the supervision of the Probation Service, on a reviewable release basis, be it weekly, fortnightly, monthly, bi-annually or yearly (all case dependent) is currently 17.5 years.
A life sentenced prisoner is referred to the Parole Board after 7 years in custody. The Board will make recommendations only regarding his/her sentence management, etc. The decision regarding the granting of temporary reviewable release to life sentenced prisoners in the jurisdiction is a matter for the Minister for Justice and Equality.
b) He was on remand in respect of the murder charge from 16.5.05 to 14.11.2005. He was sentenced on 14.11.2005 to life and the sentence start date was set at 16.5.05. We explained in our letter of 25/09/12 (copy attached) that 150 days spent on remand fell to be credited against the minimum term.
c) We have been informed that "As Mr. Cahill pleaded guilty there is [sic] no Judges findings in this case".
The Requirements under English Law
(a) may not make an order under subsection (2) of section 269 specifying a part of the sentence which in the opinion of the court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify as mentioned in paragraph 2(a), and
(b) may not make an order under subsection (4) of section 269 unless the court is of the opinion that, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to give the prisoner a notification falling within paragraph 2(b)."
(a) The judge has to initially assess what would be the appropriate period applying Schedule 21; ("Stage 1")
(b) Then as a separate exercise the judge has to consider what period in accordance with the practice followed by the Secretary of State before December 2002 would have notified. This entails following the Guidance given in the Practice Statement (Crime: Life Sentences)  1 WLR 1789. ("Stage 2");
(c) Then to fix the lower of the two periods reached at Stages 1 and 2 ("Stage 3").; and finally
(d) To consider whether in accordance with Article 10.2 of the Conventions, it is appropriate to. "adapt the sanction to the punishment or measure prescribed by [English] law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State" (" Stage 4")
Stage 1: Schedule 21 CJA 2003
Step 2 What would have been the minimum term the Secretary of State would have notified in 2002?
Stage 3: What is the lower of the two periods reached at Stages 1 and 2?
Stage 4: Does the period specified at Stage 3 correspond with the sentence imposed by the Irish Courts?
"adapt the sanction to the punishment or measure prescribed by [ English] law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State".
(a) The function of the High Court is to adapt the Irish sentence for the purpose of its enforcement in England and Wales in the context that the maximum term in both countries was "whole life". Nevertheless, in neither country is it likely that the custodial element of the penalty would be for life, although in both countries the custodial part of the penalty could result in custody for life (paragraph 46);
(b) "A mandatory life sentence has the same legal nature in Ireland and in the United Kingdom only to the extent that each is a sentence of imprisonment for life. The difference between the two penal systems is that the United Kingdom recognises that a mandatory life sentence may require either custody for life or, depending upon the recommendation of the Parole Board as to the safety of the public, early release on licence from custody once the punitive element of the sentence has been served. In the UK the assessment of a minimum punitive or whole life term is a judicial decision made by the trial judge or the High Court. In the Republic of Ireland the sentence must be served in custody for life, subject to the power of administrative temporary release on licence, habitually exercised by the Minister upon criteria similar to those considered partly by the trial judge or High Court and partly by the Parole Board in England and Wales" (paragraph 47);
(c) "A judge performing a review under section 273 of a sentence of life imprisonment imposed in the Republic of Ireland has, in theory, three possible approaches available: Either (1) the judge must impose a whole life term, subject only to compassionate statutory release by the Secretary of State, which is not the equivalent in the UK of the Irish Minister's power of executive release, or (2) the judge must reach his assessment of the minimum term solely in accordance with schedules 21 and/or 22 of the 2003 Act, and/or (3) the judge should endeavour to give effect to Article 10 of the Convention by seeking to adapt the sentence to achieve correspondence with the punishment as it would have been enforced in the Republic of Ireland" (Paragraph 51);
(d) "It seems to this court that in the absence of reliable information from the Ministry of Justice in Ireland as to the way in which the Minister was likely to exercise his statutory discretion, the judge has no alternative but simply to apply section 269 and schedules 21 and 22 to his assessment of the minimum term:" (paragraph 53); and
(e) It rejected the submission that because those sentenced to life imprisonment in Ireland are entitled to a review after 7 years as explained in paragraph 16 above, the same principles should be applied by this Court (paragraph 54).