Noye, R. v

For a mandatory life prisoner detained abroad before extradition, Criminal Justice Act 2003 section 269(3) requires the minimum term to reflect the direction that would have been made under section 240. The court may give no credit for foreign custody where it would be unjust to do so. Credit is not automatic merely because detention occurred before extradition. It may properly be refused where an offender deliberately fled in an organised effort to evade justice, remained abroad, and then resisted extradition by advancing a false account.

The applicant was convicted of murder at Maidstone Crown Court in 2000 and sentenced to life imprisonment. Latham J recommended a 16-year minimum term.

After the killing, the applicant fled abroad and was later arrested in Spain. He spent nine months in Spanish custody before extradition, which he contested. Simon J subsequently set the minimum term under the transitional regime without reducing it for that period.

The applicant renewed, 19 months late, an application for permission to appeal. The sole issue was whether the minimum term should be reduced to reflect the Spanish detention.

1. Disposition. The renewed application for permission to appeal was refused as wholly without merit.
2. At the time of sentence, section 47 of the Criminal Justice Act 1991 gave the sentencing court a discretion to allow credit for pre-extradition foreign custody. Under the current regime, sections 240 and 243 of the Criminal Justice Act 2003 concern credit for fixed-term prisoners. Section 269(3) requires the minimum term for a mandatory life sentence to reflect the effect of the direction that would have been made under section 240.
3. Section 240(4) preserves a discretion to deny credit where it would be unjust to grant it. The court accepted that the statutory starting point may ordinarily favour some credit, but held that the overriding question remains whether credit is just in all the circumstances. Earlier sentencing decisions, including R v Scalise and Rachel 7 Cr App R(S) 395 and R v Peffer (1992) 13 Cr App R(S) 150, showed that deliberate resistance to extradition is material to that discretion.
4. The circumstances justified refusing any reduction. The applicant had fled through a planned and sophisticated operation, remained abroad to evade justice, contested extradition at every stage, and used a wholly false account to avoid return. Those matters made it just to give no credit for the Spanish custody.
5. There was therefore no basis to interfere with Latham J's original approach or Simon J's adoption of it when fixing the minimum term.

• Court of Appeal (Criminal Division). The renewed application for permission to appeal was refused: [2013] EWCA Crim 510.
• High Court (Simon J). On 25 June 2010 Simon J set the minimum term under Schedule 22, paragraph 3 of the Criminal Justice Act 2003, leaving unchanged the 16-year recommendation.
• Crown Court at Maidstone (Latham J). In 2000 the applicant was convicted of murder, sentenced to life imprisonment, and given a recommended minimum term of 16 years.
• Earlier Court of Appeal proceedings. The judgment records that an appeal against conviction following a Criminal Cases Review Commission reference had been dismissed. No sentencing issue was then advanced.