Khan, Decision Upon A Reference Under the Criminal Justice Act 2003

Section 273 of the Criminal Justice Act 2003 applies to a transferred life prisoner transferred after the commencement of that section, even where the original life sentence was imposed earlier. The sentence must be converted under Article IX.1(b) of the Convention on the Transfer of Sentenced Persons. Its duration is the prisoner’s life, not merely the minimum period before parole eligibility. However, the administering state must not aggravate the prisoner’s penal position. A minimum term exceeding that fixed by the sentencing state is therefore impermissible. The High Court may determine the applicable minimum term and deduct the relevant period spent on remand.

The Home Secretary referred the case under section 273 of the Criminal Justice Act 2003. Khan, a United Kingdom citizen, had been convicted in Canada of second degree murder and sentenced to life imprisonment, with parole eligibility after a minimum of ten years. He was transferred to England and Wales in October 2005 under the Repatriation of Prisoners Act 1984 and the Convention on the Transfer of Sentenced Persons.

The issues were whether section 273 applied despite the date of the Canadian sentence, how the Convention governed the sentence’s conversion, and whether the High Court could impose a minimum term exceeding ten years.

1. The reference was properly made. Section 269(1) concerns only the chronological scope of section 269. Section 273 contains its own express temporal requirement: the prisoner must have been transferred to England and Wales after the commencement of section 273. That section commenced on 18 December 2003 under section 336(2). Khan’s transfer in October 2005 therefore brought him within section 273.

2. Article IX.1 of the Convention gave the United Kingdom the choice between continued enforcement and conversion of the Canadian sentence. Because section 273 required the High Court to make a relevant order, the sentence had to be converted under Article IX.1(b). Under Article X.1, the United Kingdom remained bound by the legal nature and duration of the original sentence. The duration was life imprisonment. The ten-year period concerned parole eligibility and did not define the duration of the sentence.

3. Section 273(3) required the court to proceed by reference to section 269. The court considered that, if the case were treated as an ordinary domestic murder, the appropriate minimum term would have been between ten and twelve years, subject to credit for remand. The offence was not within the exceptionally high or particularly high seriousness categories in paragraphs 4 and 5 of Schedule 21. Mitigating features included the absence of premeditation and Khan’s good character.

4. Article XI.1(d) prohibited aggravation of the prisoner’s penal position. Increasing the minimum term beyond the ten years fixed by the Canadian sentencing judge would aggravate that position. The court therefore determined the minimum term as ten years. Under sections 274(2) and 269(3)(b), the whole period of remand, amounting to 19 months and 23 days, was credited. The period specified before the early release provisions applied was consequently seven years and 129 days.