Cahill, Re Application for the Setting of A Minimum Term

When a life prisoner transferred to England from a jurisdiction such as Ireland has no fixed minimum term, the High Court must adapt the sentence for enforcement in England under Article 10.2 of the Convention on the Transfer of Sentenced Persons 1983. The court should calculate the appropriate English minimum term under the applicable statutory framework, including any transitional restrictions, and then ensure that the result corresponds as far as possible with the sentence imposed abroad. The adapted term must not aggravate the foreign sanction or exceed the maximum permitted by English law. In a transitional murder case, the court must separately calculate the Schedule 21 figure, the pre-December 2002 Secretary of State figure, select the lower figure, and then perform the Article 10.2 correspondence exercise.

James Cahill was convicted of murder in Dublin on 14 November 2005 and sentenced to life imprisonment. He was later transferred to England to serve the sentence. The Secretary of State referred the case to the High Court under Criminal Justice Act 2003 section 273 for the setting of a minimum term.

The Irish authorities confirmed that Ireland fixed no minimum term for life prisoners, that the average period before reviewable release was currently 17.5 years, and that 150 days on remand were credited. The central issue was how the English court should determine a corresponding minimum term under the Convention and the transitional provisions applicable because the murder was committed in 2002.

1. Convention framework. Article 10.1 could not be applied because the Irish sentence had no determinate duration. Under Article 10.2, the court therefore had to adapt the sanction to the punishment prescribed by English law for a similar offence. The adapted sentence had to correspond as far as possible with the Irish sentence and could not aggravate it by nature or duration.
2. Four-stage approach. Following R v Sullivan [2004] EWCA Crim 1762, the court first calculated the appropriate figure under Schedule 21 of the Criminal Justice Act 2003. It then calculated the figure which the Secretary of State would probably have notified under the pre-December 2002 practice and the Practice Statement. The lower figure was selected. Finally, the court considered whether that figure corresponded with the foreign sentence for Article 10.2 purposes.
3. Calculation. The murder was a contract killing, justifying the 30-year Schedule 21 starting point. The use of a firearm was an additional aggravating feature, increasing the starting point to 34 years. The guilty plea and substantial assistance to the authorities, given at personal risk, justified a 50 per cent discount, producing 17 years less the 150 days spent on remand. The assistance could be taken into account under common law principles even though no written agreement under section 73 of the Serious Organised Crime and Police Act 2005 existed, applying the principles summarised in R v A and B [1999] 1 Cr App R (S) 52.
4. Under the pre-December 2002 practice, the contract killing and firearm aggravation produced a 22-year figure before the 50 per cent discount. The resulting term was 11 years less 150 days. That was lower than the Schedule 21 figure and was therefore selected.
5. Disposition. Applying the approach in R v Hull [2011] EWCA Crim 1261, the court held that the Stage 3 figure sufficiently corresponded with the Irish sentence. The minimum term was fixed at 11 years less 150 days spent on remand.