Hull v R.

Norman Hull is a mandatory life prisoner, now aged 62, transferred from the Republic of Ireland to serve the remainder of his sentence in the United Kingdom. He seeks leave to appeal the order of Kenneth Parker J who, on 2 September 2010, pursuant to section 273 Criminal Justice Act 2003, set a minimum term of 18 years to be served pursuant to a sentence of life imprisonment imposed by the Central Criminal Court in Dublin on 2 December 1994. Mr Declan O’Callaghan appears for the appellant and, at the invitation of the Registrar, Mr John R W D Jones appears on behalf of the Attorney General. This is the judgment of the Court which is indebted to Wilkie J for much of the research and consequential drafting.

Mr Hull’s application raises two important issues. The first relates to the jurisdiction of the Court of Appeal of England and Wales to hear appeals by transferred life prisoners against the setting of a minimum term by the High Court. The second concerns the principles upon which the High Court should approach the setting of the minimum term in cases of transferred life prisoners from a jurisdiction in which a sentence of life imprisonment means custody for life subject to administrative release.

We grant leave.

Normal Hull was born in London in 1949. He, his Irish wife and his children settled in Ireland in the 1970s. Mr Hull was employed as a computer programmer. His marriage broke down and the couple separated in 1991. By then Mr Hull ran a legal software business in partnership called Q2 Relational Software. Louise Dear was one of his employees. According to Mr Hull, an intimate relationship developed which subsisted until 1993. Louise Dear gave evidence that there had been sexual intimacy on only two occasions. In 1991 she met the deceased man Clement Kirby, who lived in Galway, to whom she then made visits periodically. Mr Hull objected to this relationship. He decided to confront Clement Kirby at his home. He took with him a shotgun borrowed by a deception for the purposes, he maintained at his trial, of securing a written admission from Mr Kirby that he had posted an anonymous letter to his own girlfriend, Patricia, informing her of one of Miss Dear’s visits. Miss Dear believed the letter had been sent by Norman Hull. Hull purchased an old BMW car, fixed and driven with false registration plates, and wore a disguise. When Mr Kirby opened his door and saw the appellant he immediately shut it again, but the appellant discharged the gun through the closed door and Mr Kirby was killed. The appellant got back into his car and drove away. Later, having consulted a solicitor, the appellant reported to the police.

At Dublin Central Criminal Court the appellant admitted manslaughter saying that he had not meant to fire the shotgun but was convicted of murder and sentenced to life imprisonment. No minimum term to be served pursuant to a mandatory life sentence is set by the sentencing court in the Republic of Ireland. Early release from a life sentence, if any, is authorised by the Minister of Justice upon the advice of a non-statutory Parole Board. A prisoner serving life imprisonment will have his first review after 7 years. That process began in the case of this appellant. It was not completed, however, because Mr Hull applied to be transferred to the mainland to serve the remainder of his sentence in an English prison.

The United Kingdom and Ireland are signatories to the Convention on the Transfer of Sentenced Persons 1983 by which member states of the Council of Europe and other signatories agreed “to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of [the] Convention”. The Convention includes the following provisions:

Article 3: Provides the conditions for transfer. There are two alternative procedures for adoption by the “administering State” envisaged by the convention, continuation of enforcement under Article 9.1a or conversion of the sentence under Article 9.1b. By Article 3.3 any State may at the time of signature or ratification indicate that it intends to exclude one or other of the Article 9.1a and 9.1b procedures.

Article 4: Creates the obligation of the “sentencing State” to provide information to the sentenced prisoner and to the administering state to which the request to receive the prisoner may be directed.

Article 5: Deals with the form of a request by the sentencing State.

Article 6: Makes provision for the administering state to supply supporting documents, including, if requested, a statement of the procedure which will apply to the sentenced person on transfer; and the supply by the sentencing state of documents concerning the judgment, the law of the sentencing state, the details of the sentence served and to be served, and relevant reports upon the prisoner.

Article 7: Requires verification of the sentenced person’s informed consent.

Article 8: Defines the effect of transfer on the sentencing state.

Article 9: Defines the effect of transfer on and the obligations which fall upon the administering state.

Article 9 of the Convention provides, in its material parts:

“Article 9 – effect of transfer for the administering State

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 ...”

Article 10 provides as follows:

“Article 10 - continued enforcement

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.”

Article 11 provides as follows:

“Article 11 – conversion of sentence

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.”

The United Kingdom, upon ratification of the Transfer Convention, elected not to apply the conversion procedure for which provision was made in Article 9.1(b) of the Convention, as follows:

“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.”

It follows that the United Kingdom elected to apply the continued enforcement mechanism (Article 10) under the Transfer Convention. It has excluded the conversion of sentence procedure under the power given by Article 3.3 which provides:

“Any State may, at the time of signature, or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, indicate that it indicates to exclude the application of one of the procedures provided in Article 9.1a and b in its relations with other parties.”

By the Repatriation of Prisoners’ Act 1984 the UK Government introduced procedures in compliance with its obligations under the Convention which were also suitable for application to agreements between the UK and non-Convention countries. By section 1 the relevant minister shall, when the UK and the other party has reached agreement for transfer in respect of a particular person who has consented (where consent is necessary), issue a warrant for the transfer of the prisoner. A warrant may not be issued until all reasonable steps have been taken to inform the prisoner inter alia of (Section 1(4)(c) ):

“The effect in relation to the prisoner of the law relating to his detention under that warrant (including the effect of any enactment or instrument under which he may be released earlier than provided for by the terms of the warrant).”

In March 2005 the Home Office Lifer Review and Recall Section provided Mr Hull with the following information:

“[1] A note setting out the relevant provisions of the Criminal Justice Act 2003 (CJA) is attached.

(2)

As you will see from paragraph 5 of the note your case will be referred to the High Court following your repatriation to England and Wales. The High Court would then give you an opportunity to make representations before setting a minimum term to be served (taking into account the period already served in custody to that point) before you could be released on Life Licence if the Parole Board found at the end of that period that you no longer needed to be detained for the protection of the public.

(3)

As the murder was committed with a firearm, under paragraph 5 (2) (b) of schedule 21 of CJA the starting point in determining the minimum term would be 30 years.

(4)

Your offence, however, was committed before the CJA provisions came into force (19 December 2003), and before the practice guidance issued by Lord Woolf CJ on 31 May 2002 and Lord Bingham CJ on 10 February 1997 (which gave 14 years as the period to be served for an “unexceptional” murder).

(5)

In our view, the Secretary of State, in setting ... your tariff, would have regarded the murder as aggravated by the use of the firearm and premeditation, as demonstrated by obtaining the gun in advance, the purchase of a car and the use of false number plates.

(6)

There would appear to be no mitigating factors.

(7)

Taking into account all these circumstances, the Secretary of State at the time would have been likely to set a tariff of 18 years.

(8)

You should regard this as only an indication of the level of minimum term which may be set if you are repatriated. The decision on minimum term will be entirely a matter for the High Court judge who considers the case.”

It was on the basis of this information provided to Mr Hull that he consented to his transfer to the United Kingdom.

On 6 September 2007 the Head of Division at the National Offender Management Service issued the warrant for Mr Hull’s transfer in the following terms:

“REPATRIATION OF PRISONERS ACT 1984

WARRANT FOR TRANSFER TO AND DETENTION IN THE UNITED KINGDOM

WHEREAS the United Kingdom is a party to an international arrangement providing for the transfer between the United Kingdom and the Republic of Ireland of persons to whom Section 1(7) of the Repatriation of Prisoners Act 1984 applies:

AND WHEREAS the Secretary of State and the appropriate authority of the Republic of Ireland have each agreed to the transfer into the United Kingdom, under those arrangements, of the prisoner named Norman HULL, being a person to whom Section 1(7) of the same Act applies;

AND WHEREAS and said prisoner has consented to being transferred into the United Kingdom in accordance with those arrangements;

AND WHEREAS the said prisoner is a British citizen;

AND WHEREAS the Secretary of State, in pursuance of Section 1(1) of the said Act have been fulfilled.

NOW, therefore the Secretary of State, in pursuance of Section 1(1) of the said Act, by this warrant authorises any person acting under the orders of the Governor of Her Majesty’s Prison Wandsworth, to take the said prisoner into his custody, to bring the said prisoner into the United Kingdom from the Republic of Ireland, and to take the said prisoner to Her Majesty’s Prison Wandsworth and there deliver him to the Governor thereof and further authorise the Governor to receive the said prisoner in his custody, and detain the said prisoner in accordance with the following provisions of this warrant:

(1)

That the term the said prisoner is to serve shall be LIFE imprisonment.

Given under the hand of the undersigned a senior officer of the Ministry of Justice on this 6^th day of September 2007.

Pat Baskerville

National Offenders Management Service

Head of Division.”

Section 2 Criminal Justice Act 1990 (Republic of Ireland) provides:

“A person convicted of treason or murder shall be sentenced to imprisonment for life.”

The constitutionality of section 2 was challenged in the Supreme Court of Ireland in Lynch v Minister for Justice, Equality and Law Reform [2010] IESC 34. Judgment was delivered on 14 May 2010 by Murray CJ. The Chief Justice’s judgment demonstrates the divergence between the structure and management of mandatory life sentences imposed in the Republic and those imposed in the United Kingdom. The appellants had argued that a mandatory life sentence imposed without regard to the circumstances of each individual case was a disproportionate punishment. The Supreme Court held:

(1)

A life sentence imposed pursuant to section 2 of the 1990 Act was a sentence of custody for life, wholly punitive in nature, and did not incorporate any element of preventative detention;

(2)

The sentence subsisted for the entire life of the person convicted of murder. While that person might be released by the Minister of Justice exercising a discretionary power to grant temporary release under section 2 Criminal Justice Act 1960, as amended by the Criminal Justice (Temporary Release of Prisoners) Act 2003, the exercise of such a power was a privilege and not an entitlement;

(3)

The decision of the State to require a sentence of life imprisonment for murder was a proportionate exercise of its powers;

(4)

The exercise by the Minister of his discretion to order early release was an administrative decision subject to the usual principles of judicial review;

(5)

The Republic of Ireland had retained the concept of a punitive sentence of imprisonment for murder for the rest of the prisoner’s natural life subject to administrative review by the State. The imposition of such a sentence did not offend the European Convention on Human Rights, in particular Art 3, and did not require judicial decision. However, in the United Kingdom, the punitive element of the mandatory life sentence was fixed by reference to the “minimum term” which did require a judicial decision. Once the minimum term was served “the nexus between the crime and its punishment was broken or terminated and the prisoner’s detention continued for reasons which were unrelated to the punishment of the crime”.

Transferred mandatory life prisoners in the UK

In the United Kingdom, section 273 (1) Criminal Justice Act 2003 provides:

“(1)

The Secretary of State must refer the case of any transferred life prisoner to the High Court for the making of one or more relevant orders.”

A transferred life prisoner is defined in sub-section (2) and, by sub-section (3):

“(3)

In sub-section (1) “a relevant order” means –

(a)

In the case of an offence which appears to the court to be an offence for which, if it had been committed in England and Wales, the sentence would have been fixed by law, an order under sub-section (2) or (4) of section 269, and

(b)

In any other case an order under sub-section (2) or (4) of section 82A of the Sentencing Act.”

Section 269 Criminal Justice Act 2003, which applies to mandatory life prisoners sentenced after the commencement of the section (18 December 2003), requires the court to specify when the early release provisions of section 28(5) – (8) Crime (Sentences) Act 1997 are to apply. In the alternative, if the offender was aged 21 or over at the time when the offence was committed and “the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under sub-section (2)”, sub-section (4) requires the court to order that the early release provisions are not to apply to such an offender, rendering the sentence a “whole life” order.

Section 269(3) and (5) requires the court, when assessing the seriousness of the offence, to have regard to the general principles set out in schedule 21 to the 2003 Act.

Section 276 provides that schedule 22 shall have effect “in relation to transitional cases of mandatory life sentences”. In summary, schedule 22 is to be applied as follows:

(1)

To UK mandatory life prisoners who have not before the date of commencement (18 December 2003) been notified of the minimum term. Paragraphs 5 and 6 require the Secretary of State to refer the prisoner’s case to the High Court for the making of an order under section 269. In considering the seriousness of the offence the High Court is required to have regard not only to schedule 21 but also to any recommendation made by the trial judge or the Lord Chief Justice to the Secretary of State. In any event, the High Court must not exceed the minimum term which would have been likely to have been imposed under the Secretary of State’s practice before December 2002;

(2)

To those mandatory life prisoners who had been notified in writing by the Secretary of State of the minimum period to be served before the commencement date. They were, by paragraphs 2 and 3, entitled to seek a review of the minimum term by the High Court. The High Court was required when performing the review to have regard to the general principles identified in schedule 21 and to any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice;

(3)

To the cases of those sentenced after the commencement date to a mandatory term of life imprisonment in respect of an offence committed before the commencement date. Paragraphs 9 and 10 prohibit the court from imposing a minimum term which exceeds that which, under the practice followed by the Secretary of State before December 2002, would have been likely to have been notified to the prisoner.

The scheme of schedule 22 is to require the High Court not only to have regard to the principles set out in schedule 21 but also to impose a minimum term which would have reflected the practice of the Secretary of State at the time the offence was committed.

Judgment of Kenneth Parker J

The appellant’s case was referred to the High Court under section 273 of the 2003 Act. By section 274 such a reference is to be determined by a single judge without an oral hearing (subject to the judge’s assessment of the need for an oral hearing).

In accordance with the information provided to the appellant before he consented to his transfer, the Ministry of Justice and the legal representatives for the appellant sought the application of the transitional provisions provided by schedule 22 since Mr Hull’s sentence was imposed in 1994, well before the relevant provisions of the 2003 Act came into force. The Practice Direction (Criminal Proceedings: Consolidation) paragraph IV.49.17 advises judges that “where the murder was committed before 31 May 2002, the best guide to what would have been the practice of the Secretary of State is the letter sent to judges by Lord Bingham CJ”. The “normal” or “unexceptional” case would result in a minimum term notified at about 14 years. Aggravating features included planning and the use of a firearm.

There was, however, an unavoidable obstruction to such an interpretation of section 273. For the purposes of schedule 22 a life sentence is, by paragraph 1, defined as:

“... a sentence of imprisonment for life or custody for life passed in England and Wales or by a court martial outside England and Wales.”

Further, section 273 gave no jurisdiction to the High Court to consider schedule 22, only section 269 and, therefore, schedule 21. Kenneth Parker J agreed with the conclusion of Stanley Burnton J (as he then was) in Abdur Khan [2006] EWHC 2826 (QB) that only schedule 21 applied to transferred prisoners and not the transitional provisions of schedule 22.

The judge concluded, without dispute, that an assessment made under schedule 21 would have provided a starting point of 30 years. The murder had been premeditated, carefully planned and involved the use of a firearm.

The judge further concluded, however, that the imposition of a minimum term of 30 years would constitute a breach of the United Kingdom’s obligations under the Convention for transferred prisoners. He assumed that Article 11 of the Convention applied which permitted the administering state to convert the sentence but, in so doing, the administering state:

“(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 shall provide for the offence or offences committed.”

Applying the terms of paragraph 1(d), Stanley Burnton J in Abdur Khan concluded that although the minimum term assessed under schedule 21 would have provided a starting point of 15 years and a probable minimum term of between 10 and 12 years, he would reach a determination of 10 years which brought it in line with the sentence imposed by Lysyk J in Canada, in order to ensure that the “penal position of the sentenced person” was not aggravated.

Seeking to achieve a similar result, Kenneth Parker J was faced with the difficulty that there was no minimum term imposed under the regime for mandatory life sentences in the Republic of Ireland. It was submitted by Mr O’Callaghan to the judge, as it was submitted to this court, that he should seek to achieve parity by imposing a minimum term of 7 years. His reasoning was that if Mr Hull was entitled to a Parole Board review in Ireland after 7 years, then he should be entitled to a Parole Board review in England and Wales immediately. Mr O’Callaghan drew our attention to a description of the work of the non-statutory Irish Parole Board given by Kearns J in an earlier decision of the Republic of Ireland Supreme Court, DPP v McC and D [2007] IESC 47:

“The Parole Board

A Parole Board was established by the Minister for Justice, Equality and Law Reform in 2001 to review the cases of prisoners with longer term sentences and to provide advice in relation to the administration of those sentences. Before the Board can review the case of any prisoner, his or her case must first be referred to it by the Minister for Justice, Equality and Law Reforms. Generally, the cases of prisoners sentenced to 8 years or more but less than 14 years are reviewed at the half-sentence stage. The cases of prisoners sentenced to 14 years or more, including life, are reviewed after 7 years have been served. The review process which can take around 6 months involves a number of stages. The first is that of referral by the Minister, following which the Secretariat of the Parole Board writes to the particular prisoner who is being referred to the Board and invites him to participate in the review process. A dossier is then assembled from relevant agencies, including the probation and welfare service, the governor, the local prison review committee and An Gard Siochâna. Then the prisoner is circulated with copies of reports compiled in his individual case. He is also allowed to attend an informal interview with members of the Board for the purpose of making submissions. Following such interview, a written report is prepared and a copy of this is given to the prisoner. There can be a number of reviews. Ultimately the Board makes its own recommendations to the Minister for Justice, Equality and Law Reform. Its recommendations may include a structured programme advising that the prisoner should participate in educational work training or work with particular therapeutic services. It may also recommend short periods of temporary release leaving to longer periods of temporary release.

The Board’s role is advisory only and the Minister is not obliged to accept any recommendation made by it. The Minister’s decision is conveyed to the prisoner, in writing, as soon as practicable after he receives the Board’s recommendation.”

The Supreme Court endorsed the view expressed by a leading textbook on sentencing law and practice in the Republic of Ireland:

“ ... the likely date of a person’s release or eligibility for consideration for parole cannot be predicted with any confidence when sentence is being imposed.”

As Kenneth Parker J pointed out at paragraph 17 of his judgment the flaw in Mr O’Callaghan’s submission is that it seeks to equate the institutional seven year review in the Republic of Ireland with a consideration of a prisoner’s suitability for release by the Parole Board in the United Kingdom. As the learned judge remarked there is no directly comparable system in the Republic of Ireland where the punitive and deterrent element of the sentence lasts for its duration and where as a matter of law preventative detention forms no part of the sentence. In the United Kingdom the minimum term is a judicially determined period which the prisoner is required to serve for retribution and deterrence following which the sole issues for determination by the Parole Board are the safety of the public and the reintegration of the prisoner upon his release.

We have been provided with a transcript of a statement made by Deputy Dermot Ahern, Minister for Justice, Equality and Law Reform to the Dáil Éireann on 29 April 2010 in which the Minister provided statistics concerning the number of years actually served by life prisoners:

“Generally speaking life sentenced prisoners are reviewed on a number of occasions before any substantive recommendations are made to me which might lead to the eventual extended temporary release of the individual back to the community to continue to serve his/her sentence, subject to a range of strict conditions. Having put the provisions applicable to life sentences in context let me tell the deputy, in response to his specific question, that on 31 December 2009 there were 266 persons in custody serving life sentences. In addition 60 persons were under the supervision of the probation service on extended temporary release pursuant to the 1960 Act. Some of these persons were first released into the community over 30 years ago. Of the 60 life sentence prisoners currently under supervision in the community, a total of 11 of these were granted temporary release during the time period 2004 to date. The average time spent in custody by these persons over this 6 year period is 17 years. This compares to an average of just over 7½ years for releases dating from 1975 to 1984, just under 12 years for the period dated from 1985 to 1994 and just under 14 years for the period dating from 1995 to 2004. As is clear from these figures life sentence prisoners are serving longer terms in custody. I trust that these figures will dispel any notion that this category of prisoner spends anything other than a significant period of time in custody for the serious and heinous crimes they have committed.”

The Minister’s statement was confirmed in a letter from Secretary of State to the High Court dated 15 July 2010. As the UK Ministry of Justice was advised by its counterparts in the Republic of Ireland, the vast majority of life sentence prisoners in Ireland are granted their first Parole Board review having served 7 years in custody. In general, a prisoner would have a number of reviews over a period of years before the Parole Board would make recommendations concerning a possible temporary release on licence. Since the establishment of the Parole Board in 2001 no life sentence prisoner had been released after only 7 years. The average was currently 17½ years. Some life sentence prisoners were still in custody having served over 30 years.

The position of the Secretary of State in written submissions to Kenneth Parker J, once informed that the transitional provisions did not apply, was that the judge should simply apply schedule 21. Were he to do so, the minimum term would be 30 years. Faced with that prospect the judge said at paragraph 21 of his judgment:

“... I am left with the uneasy impression that such a period would significantly exceed the period which Norman Hull might reasonably have expected to serve in prison in the Republic of Ireland assuming that his release would not pose an unacceptable risk to public safety.”

Applying Article 11.1(d) of the Convention the judge said at paragraph 22:

“22.

It is difficult in this case to fix a minimum term that it could be said with confidence would not aggravate Norman Hull’s penal position after transfer. However, doing the best that I can on the materials available to me, I believe that a minimum period of 18 years, less the days spent in custody before sentence (which I am informed were 46 days), would in substance eliminate the risk of contravening Article 11, having regard to the average period of 17.5 years imprisonment for those released since 2004, and the particular gravity of this offence.”

Mr O’Callaghan renews his argument to this court that the High Court should have set a minimum term of 7 years or such other term as would entitle Mr Hull to an immediate review of his suitability for release by the Parole Board of England and Wales.

When the application for leave to appeal was lodged with the Criminal Appeal Office Mr Michael Catterson had occasion to check the provisions of the 2003 Act relating to the powers of the High Court and the Court of Appeal. We are grateful for his researches.

Relevant provisions of section 274 Criminal Justice Act 2003 are:

“(3)

A person in respect of whom a reference has been made under section 273 [a transferred life prisoner] may with the leave of the Court of Appeal appeal to the Court of Appeal against the decision of the High Court on the reference.

(4)

Section 1(1) of the Administration of Justice Act 1960 (appeal to Supreme Court from the decision of High Court in a criminal cause or matter) and (section 18(1) (a) of the Senior Courts Act 1981 (exclusion of appeal from High Court or Court of Appeal in a criminal cause or matter) do not apply in relation to a decision to which sub-section (3) applies.

(5)

The jurisdiction conferred on the Court of Appeal by sub-section (3) is to be exercised by the criminal division of that court.

(6)

Section 33(3) of the Criminal Appeal Act 1968 (limitation on appeal from criminal division of Court of Appeal) does not prevent an appeal to the Supreme Court under this section.

(7)

In relation to appeals to the Court of Appeal or the Supreme Court under this section, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968 (subject to any specified modifications).”

While section 274(7) of the 2003 Act gave authority for the making of an order which applies to transferred prisoner appeals the relevant provisions of the Criminal Appeal Act 1968, no such order has been made. The right of appeal against sentence is given by section 9 Criminal Appeal Act 1968. In its relevant parts section 9 (1) provides:

“(1)

A person who has been convicted of an offence on an indictment may appeal to the Court of Appeal against sentence (not being a sentence fixed by law) passed on him for the offence whether passed on his conviction or in subsequent proceedings.

(1A) In sub-section (1) of this section the reference to a sentence fixed by law does not include the reference to an order under (sub-section (2) or (4) of section 269 of the Criminal Justice Act 2003) in relation to a life sentence (as defined by section 277 of that Act) that is fixed by law.”

The legislative lacuna appears to be that, while section 274 of the 2003 Act gives a right of appeal to the criminal division of the Court of Appeal, section 9 Criminal Appeal Act 1968, which applies to trial on indictment in the Crown Court in England and Wales, does not endow the court in the case of a transferred prisoner with the power to quash the order made in the High Court and to substitute its own as under section 11(3) Criminal Appeal Act 1968.

We are encouraged by both parties to adopt a purposive approach to the legislation so as to ensure that a prisoner in Mr Hull’s position is not deprived of the right of appeal which Parliament undoubtedly intended to grant. Had it been necessary to do so we would have been inclined to interpret section 274 (3) and (5) as meaning that the court was clothed with the same jurisdiction which it enjoys under sections 9 and 11 Criminal Appeal Act 1968. That, we consider, can be the only rational intention behind the sub-sections. However, for a simpler solution we need to examine the terms of section 3 Repatriation of Prisoners Act 1984. The relevant provisions are as follow:

“3 – Transfer into the United Kingdom

(1)

The effect of the warrant under section 1 providing for the transfer of the prisoner into the United Kingdom shall be to authorise:

a)

The bringing of the prisoner into the United Kingdom from a place outside the United Kingdom;

b)

The taking of the prisoner to such place in any part of the United Kingdom, being a place at which effect may be given to the provisions contained in the warrant by virtue of paragraph (c) below as may be specified in the warrant; and

c)

The detention of the prisoner in any part of the United Kingdom in accordance with such provisions as may be contained in the warrant, being provisions appearing to the relevant minister to be appropriate for giving effect to the international arrangements in accordance with which the prisoner is transferred.

(2)

Subject to section 4(2) to (4) below, a provision shall not be contained by virtue of sub-section (1) (c) above in a warrant under section 1 unless it satisfies the following two conditions, that is to say –

(a)

It is a provision with respect to the detention of the person in a prison, a hospital or any other institution; and

(b)

It is a provision which at the time the warrant is issued may be contained in an order made either –

(i)

in the course of the exercise of its criminal jurisdiction by a court in the part of the United Kingdom in which the prisoner is to be detained; or

(ii)

otherwise than by a court but for the purpose of giving effect to an order made as mentioned in sub-paragraph (i) above. ...

(4)

Subject to sub-section (6) below and the schedule to this Act a provision contained by virtue of sub-section (1) (c) above in a warrant under section 1 shall for all purposes have the same effect as the same provision contained in an order made as mentioned in sub-paragraph (i) or, as the case may be, sub-paragraph (ii) of sub-section (2) (b) above. ...

(6)

Sub-section (4) above shall not confer any right of appeal on the prisoner against provisions contained by virtue of sub-section (1) (c) above in a warrant under section (1) ...” [emphasis added by italicised font].

The schedule to the Act is not material. The provision contained in the warrant was:

“That the term the said prisoner is to serve shall be life imprisonment.”

That provision was one which, in accordance with section 3(2), “may be contained in an order” made “in the course of the exercise of its criminal jurisdiction by a court” in England and Wales. By section 3(4), once included in the warrant that provision “shall for all purposes have the same effect as the same provision contained in an order made” “in the course of the exercise of its criminal jurisdiction by a court in England and Wales”, save that by sub-section (6) “no appeal would lie against” the term of life imprisonment.

It would appear to follow that while section 3 did not provide a right of appeal against the life sentence provision in the warrant, for all other purposes that provision was to be treated as of the same effect as if the sentence (“order”) of life imprisonment had been made by a court in England and Wales. Had the order been made by a court in England and Wales, a minimum term was required to be set by the High Court on referral by the Secretary of State, from which the appellant would have enjoyed a right of appeal under section 9 Criminal Appeal Act 1968, as amended, and the court could exercise its power to substitute a minimum term under section 11. The appellant enjoyed no right of appeal against the sentence of life imprisonment but, by virtue of section 274, he was entitled to appeal the minimum term set by the High Court. It seems to this court that since the sentence of life imprisonment is 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 must be so treated is the power of the Court of Appeal to quash and substitute a minimum term imposed after a decision on referral under section 273. This, notwithstanding that at the time the 1984 Act was passed, a minimum term would have been set by the Home Secretary on advice from the trial judge and the Lord Chief Justice and no statutory right of appeal was given. That being the case, it seems to us that the right of appeal against the minimum term given by section 274 would, in the absence of express provision, have been implied from the terms of section 3(4) of the 1984 Act in any event. It follows, in our view, that this court has power to quash any order made on a reference under section 273 of the 2003 Act and to substitute its own. Mr Hull is, for these purposes, to be treated as if he had been sentenced to a term of life imprisonment fixed by a court in England and Wales.

If we are correct in our interpretation of section 3(4) of the 1984 Act, a further argument emerges (not addressed to the court) that the schedule 22 transitional provisions do apply to the case of a transferred prisoner referred to the High Court under section 273 of the 2003 Act. The transferred prisoner should for all purposes be treated as though the “provision” was made by a court in England and Wales. That treatment would include the requirement to apply schedule 22 to cases in which it would have applied had the sentence been imposed by a court in England and Wales. This construction would accord with the views expressed in the advice given to Mr Hull before he gave his consent to transfer and with the opinion of the Minister and those representing Mr Hull before the express terms of schedule 22 were pointed out to them. We can find no objection in principle to the application of schedule 22 on these grounds. Just as section 9 of the Criminal Act 1968 applies to appeals against sentence imposed in England and Wales, so also does schedule 22 apply to minimum terms imposed in England and Wales and, by a parity of reasoning, if the “provision” of the life sentence of imprisonment in the warrant is to be treated as if it had been made in England in Wales, then both the rights of appeal and the transitional provisions should apply in appropriate cases.

We now turn to consider the process by which Kenneth Parker J reached his decision. It would appear that neither Kenneth Parker J nor Stanley Burnton J was informed of the declaration made by the United Kingdom Government at the time of ratification of the transferred prisoners’ Convention. Each proceeded upon the mistaken assumption that he was involved in a process of conversion of the sentence. In fact Articles 9.1(a) and 10 of the Convention applied.

Article 10.1 bound the United Kingdom to the legal nature and duration of the sentence determined by the Republic of Ireland. Accordingly, the sentence in the United Kingdom remained one of life imprisonment. However, where the “nature or duration” of the sentence is incompatible with the law of the administering state, Article 10.2 gives precedence to the law of the administering state by enabling that state to “adapt the sanction to the punishment or measure prescribed by its own law for a similar offence”. As a matter of law the Minister was required by section 273 of the 2003 Act to refer Mr Hull’s sentence to the High Court for the purpose of assessing the appropriate minimum term. That process was unknown to the law of the Republic of Ireland. In our judgment, Article 10.2 gave specific authorisation to the process of referral for an assessment under section 269.

In its concluding sentences Article 10.2 refers to the “nature” of the sentence, the “punishment” imposed by the sentence, and the “measure” imposed by the sentence. The administering state is required not to “aggravate” the “nature or duration” of the “sanction” imposed in the sentencing state; nor must the administering state exceed the maximum prescribed by the law of the administering state.

In its Explanatory Report to the Convention on the Transfer of Sentenced Persons (issued with the Convention) the Council of Europe explained the meaning of the terms used in Article 10 as follows:

“49...the first condition (“legal nature”) refers to the kind of penalty imposed where the law of the sentencing State provides for a diversity of penalties involving deprivation of liberty, such as penal servitude, imprisonment or detention. The second condition (“duration”) means that the sentence to be served in the administering State, subject to any later decision of that State on, for example, conditional release or remission, corresponds to the amount of the original sentence, taking into account the time served and any remission earned in the sentencing State up to the date of transfer.

50.

If the two States concerned have different penal systems with regard to the division of penalties or the minimum or maximum lengths of sentence, it might be necessary for the administering State to adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. Paragraph 2 allows that adaptation within certain limits: the adapted punishment or measure must, as far as possible, correspond with that imposed by the sentence to be enforced; it must not aggravate, by its nature or duration, the sanction imposed in the sentencing State; and it must not exceed the maximum prescribed by the law of the administering State. In other words: the administering State may adapt the sanction to the nearest equivalent available under its own law, provided that this does not result in more severe punishment or longer detention. As opposed to the conversion procedure under Article 11...the procedure under Article 10.2 enables the administering State merely to adapt the sanction to an equivalent sanction prescribed by its own law in order to make the sentence enforceable. The administering State thus continues to enforce the sentence imposed in the sentencing State, but it does so in accordance with the requirements of its own penal system.”

In R v Secretary of State for the Home Department ex parte Read [1989] AC 1014 the House of Lords considered the distinction between the authority of the administering state to convert a sentence under Articles 9.1(b) and 11 and its authority to adapt a sentence under Articles 9.1(a) and 10. At page 1052 Lord Bridge treated the explanatory report as “an aid to construction” as part of the travaux préparatoire and under article 31 of the Vienna Convention on the Law of Treaties 1969 (Cmnd.4818). In applying Article 10 the House of Lords held that a UK Secretary of State receiving the prisoner had no power to reduce a determinate sentence to UK levels save to the extent necessary to ensure that it did not exceed the maximum term which could be imposed under UK law. Adaptation did not mean conversion to UK sentencing practice. It is to be noted that the House of Lords was not dealing with an indeterminate sentence in which the systems for the setting of the custodial term were incompatible. The point at issue in Read’s appeal was whether a process of adaptation to the law of the administering state included a power to impose sentencing practice in England and Wales for offences of a similar kind. Their Lordships held that it did not. The sentence imposed in Spain had to be respected and the limit of the power available to the Secretary of State was the reduction, expressly required by Article 10.2, of the sentence to the maximum permissible under the law of England and Wales.

It was not, therefore, the function of the High Court in Mr Hull’s case simply to convert his life sentence as though it had been imposed in England and Wales. Its function was to adapt his sentence for the purpose of its enforcement in England and Wales. We recognise that the maximum term in both countries was “whole life”. On the other hand, 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.

We conclude that 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 (see paragraph 52 below).

It is, we conclude, necessary to give purposive effect to Article 10 of the Convention. While as a matter of law the sentence lasts for life in both countries, its “legal nature and duration” comprises elements both of custody and release on licence within the community. It is, in our view, not possible to ignore the difference between the two systems in their assessment of the period to be served in custody. The task of the administering state under Article 10.2 is, when adapting a sentence, as 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 will require 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 decide otherwise would require us to ignore the reality that in both countries a sentence of life imprisonment does not usually mean custody for life.

For the purposes of Article 5 ECHR, the European Court of Human Rights recognises that a transferred prisoner may, in consequence of the 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. Provided, in the case of a determinate sentence, that the sentence served does not exceed the sentence imposed by the sentencing state the deprivation of liberty is not rendered arbitrary: see Veermae v Finland (Admissibility Decision, Application No. 38704/03). It seems to us that conscientious application of the Convention cannot render arbitrary detention in custody in the administering state.

If Mr O’Callaghan’s argument is correct, however, every convicted murderer in the Irish Republic is to be treated for the purpose of the transfer provisions as if he has a minimum custodial term of 7 years. In our view this is an untenable proposition. Neither the Central Criminal Court in Dublin nor the Minister for Justice, Equality and Law Reform set 7 years as a minimum term or had power to do so. The Parole Board gave advice to the Minister of Justice to assist him in the exercise of his discretion to admit the prisoner for temporary release. Although the Parole Board had embarked upon this exercise in Mr Hull’s case it was never completed, and it is highly unlikely that if it had been completed Mr Hull would have been released for several years.

It seems to us that 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.

It seems to us obvious that, given the pragmatic administration of mandatory life sentences in the Republic of Ireland by the Minister for Justice, Equality and Law Reform, a judge in England and Wales would not be achieving correspondence by imposing in every case a whole life sentence under section 269 and schedules 21 and 22. “Correspondence” is the objective to which both parties, the sentencing state and the administering state, aspired when becoming signatories to the Convention and when agreeing to Mr Hull’s transfer. That may or may not be achieved by assessment under schedules 21 and 22. It is, on the other hand, not wholly satisfactory that a judge in England and Wales should be required to set a minimum term without knowing how the Irish Minister for Justice, Equality and Law Reform would be likely to exercise his discretion to permit temporary, leading to permanent, release. Under section 2 of the Criminal Justice Act 1960 (Republic of Ireland), as amended, the Irish Minister shall have regard to (Section 2(2)):

“(a)

The nature and gravity of the offence to which the sentence of imprisonment being served by the person relates,

(b)

The sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in relation thereto,

(c)

The period of the sentence of imprisonment served by the person,

(d)

The potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the person relates) should the person be released from prison,

(e)

Any offence of which the person was convicted before being convicted of the offence to which the sentence of imprisonment being served by him relates,

(f)

The risk of the person failing to return to prison upon the expiration of any period of temporary release,

(g)

The conduct of the person while in custody, while previously the subject of a direction under this section, or during a period of temporary release ...,

(h)

Any report of or recommendation made by [the governor, the police, the probation and welfare officers],

(i)

the risk of the person committing an offence during any period of temporary release,

(j)

the risk of the person failing to comply with any conditions attaching to his temporary release, and

(k)

the likelihood that any period of temporary release might accelerate the person’s reintegration into society or improve his prospects of obtaining employment.”

It will be seen that although the Irish Supreme Court has ruled that the punishment element of the sentence of life imprisonment subsists throughout the duration of the sentence, the matters which the Minister is enjoined to consider before authorising temporary release include factors relating both to the gravity of the offence and to the risks posed by the offender’s release. 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. Had that been the situation here, we agree with the Secretary of State’s provisional view that this would have led to the imposition of a minimum term of approximately 18 years.

There was, however, some further information of assistance to Kenneth Parker J. He was, in our judgment, entitled to conclude that while the appellant may have been one of those prisoners who would have served in custody in Ireland a term of 30 years or more, given his character and antecedents it is probable that he would have been released after about 18 years, a significantly shorter period. In this case the same result was achieved. There is, for the reasons we have given, no justification for a conclusion that a minimum term of 7 years should be fixed in order to provide the Parole Board of England and Wales with the opportunity immediately to consider the Appellant’s release. Such a course would not have been calculated to bring correspondence between the nature and duration of the punishment or sanction since the Parole Board in England and Wales would be required to assume that the punishment and deterrent element of the sentence had already been fulfilled.

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 [1989] 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.