Akgun, R v

When adapting a life sentence imposed abroad for enforcement in England and Wales, the court must seek correspondence with the likely custodial duration in the sentencing state. The domestic minimum term must reflect the legal nature and duration of the foreign sentence and must not aggravate it. The court must also apply the statutory requirements concerning seriousness, relevant starting points and credit for remand custody. The assessment requires a reasoned evaluation of the likely release position in the sentencing state, rather than treating a foreign life sentence as equivalent to a fixed period under domestic practice.

The defendant was convicted of murder by the Regional Court at Augsburg, Germany, and sentenced to life imprisonment with a finding of severe gravity of guilt. He was transferred to the United Kingdom under the Repatriation of Prisoners Act 1984. The Secretary of State referred the case under section 273(1) of the Criminal Justice Act 2003 for determination of the minimum term before consideration of release by the Parole Board.

The central issue was whether the minimum term should be fixed by applying the domestic sentencing framework alone, or adjusted to correspond with the custodial period the defendant would probably have served in Germany.

1. The court declined to make an order under section 269(4) of the Criminal Justice Act 2003. It therefore had to determine the minimum part of the life sentence which the defendant must serve before the Parole Board could consider release.

2. Under section 269(3) and (5), the court had to assess the seriousness of the offence, give effect to credit for remand custody under section 240ZA, and have regard to the general principles in Schedule 21. The murder involved substantial planning and premeditation, a prolonged and savage attack, and a joint enterprise. The appropriate domestic starting point was 25 years. The defendant’s previous good character was the only mitigating factor.

3. The transfer was governed by the Transfer of Sentenced Persons’ Convention 1983. Article 10.2 required the administering state, so far as possible, to correspond the punishment with that imposed in the sentencing state and prohibited aggravation by nature or duration. Following Norman Hull –v– Regina [2011] EWCA Crim 1261, this required a reasoned assessment of the likely duration of custody had the sentence been served in Germany. The principle was also supported by R –v– Secretary of State for the Home Department Ex parte Read [1989] 1 WLR 1014.

4. Although release in Germany before 20 years, including remand and pre-trial custody, was highly improbable, release on probation after 20 years could reasonably have been expected. To achieve correspondence, the minimum term was therefore fixed at 20 years, less 496 days spent on remand in pre-trial custody and awaiting extradition. Release remained subject to the Parole Board.

The defendant was convicted and sentenced by the Regional Court at Augsburg, Germany. He was subsequently transferred to the United Kingdom under the Repatriation of Prisoners Act 1984. The Secretary of State referred the case to the High Court under section 273(1) of the Criminal Justice Act 2003, which fixed the minimum term.