Hull v R.

Where the United Kingdom receives a mandatory life prisoner under the continued-enforcement procedure, it must adapt rather than convert the foreign sentence. Under Article 10 of the Transfer of Sentenced Persons’ Convention 1983, the court must seek practical correspondence with the custodial punishment likely to have been enforced in the sentencing state, without aggravating the sanction.

A seven-year administrative parole review in Ireland is not equivalent to entitlement to release consideration by the Parole Board in England and Wales. Reliable evidence of likely release practice in the sentencing state is therefore important. A transferred prisoner may appeal the High Court’s minimum-term order, and the Court of Appeal may quash it and substitute its own order.

The appellant was serving a mandatory life sentence for murder imposed in the Republic of Ireland in 1994. He consented to transfer to England and Wales in 2007. The High Court, on a reference under Criminal Justice Act 2003, section 273, fixed an 18-year minimum term.

The High Court had treated the case as one of sentence conversion under Article 11 of the Transfer of Sentenced Persons’ Convention 1983. The appellant sought a seven-year minimum term, contending that this would reflect the point at which an Irish life prisoner would ordinarily receive a first Parole Board review.

The appeal raised whether the Court of Appeal had power to substitute a minimum term and how a court should adapt an Irish mandatory life sentence for enforcement in England and Wales.

1. Leave was granted but the appeal was dismissed. The Court of Appeal had jurisdiction to quash a High Court minimum-term order made on a reference under section 273 and substitute its own order. Section 3(4) of the Repatriation of Prisoners’ Act 1984 gives the life-imprisonment provision in the transfer warrant the same effect as an English court order for all purposes other than an appeal against that life sentence itself. Section 3(6) did not exclude the statutory appeal against the subsequent minimum-term order.

2. The United Kingdom had elected continued enforcement under Articles 9 and 10 of the Convention, and had excluded conversion under Article 11. The High Court and the earlier decision in Abdur Khan [2006] EWHC 2826 (QB) had therefore proceeded on a mistaken assumption in treating Article 11 as applicable. Article 10.2 authorised the statutory referral and the adaptation required by the English penal system; it did not authorise conversion of the foreign sentence into a sentence imposed under ordinary English sentencing practice. This followed the distinction identified in R v Secretary of State for the Home Department ex parte Read [1989] AC 1014.

3. The legal nature of the Irish and English sentences was the same only in the limited sense that each was imprisonment for life. Their operation materially differed. The English court had to make a reasoned assessment of the likely custodial period had the sentence continued to be enforced in Ireland, so as to achieve as close a correspondence as possible with the punishment there. The Irish seven-year review was advisory and did not establish a minimum custodial term or an entitlement to release. It could not justify treating the punitive element as already served.

4. In the absence of reliable information about likely Irish release practice, the judge should apply section 269 and the relevant sentencing schedules. On the information available, the High Court was entitled to conclude that the appellant would probably have been released after about 18 years in Ireland. An 18-year minimum term therefore achieved the required correspondence. The Court also observed that section 3(4) supported applying the transitional provisions in Schedule 22 to an appropriate transferred-prisoner case, although that point had not been argued.

• Court of Appeal (Criminal Division): Leave to appeal was granted and the appeal was dismissed: [2011] EWCA Crim 1261.
• High Court of Justice, Queen’s Bench Division: Kenneth Parker J, on 2 September 2010, set an 18-year minimum term under section 273 of the Criminal Justice Act 2003.