McNally, Re

When a life prisoner is transferred to England and Wales, the foreign review date is not necessarily equivalent to an English minimum term. The court must apply the domestic statutory scheme and assess the seriousness of the offence under the relevant domestic criteria. Where the foreign system requires seriousness to be reconsidered at the review stage, the foreign review date cannot simply be treated as an equivalent minimum term. A minimum term may therefore be set by reference to the seriousness of the offence, subject to the statutory framework and Schedule 21.

The defendant had been convicted of murder in Germany and sentenced to life imprisonment. He was transferred to England and Wales to serve the remainder of his sentence. The German authorities identified a first review date after 15 years, but the Secretary of State treated that date as equivalent to a 15-year tariff.

The Administrative Court had to determine the appropriate domestic order under the Criminal Justice Act 2003, including whether early-release provisions should be excluded and, if not, what minimum term should be set.

1. The German first-review date was not equivalent to an English minimum term. Under German law, the seriousness of the convicted person’s guilt had to be considered again at the 15-year review under section 57a(1). Under English law, seriousness is considered when the minimum term is fixed. The two schemes therefore operated differently.

2. The court was required under sections 273(1) and (3)(a) of the Criminal Justice Act 2003 to make an order under section 269. The court had to decide whether the seriousness of the offence required exclusion of the early-release provisions and, if not, set a minimum term by reference to seriousness, having regard to Schedule 21.

3. The offence was not exceptionally serious for the purposes of paragraph 4 of Schedule 21, so a whole-life order was not appropriate. It was, however, particularly serious under paragraph 5(2)(d) and (e): the victim was killed to enable the defendant to evade justice, and the offence involved sexual conduct immediately afterwards.

4. The appropriate starting point was the 30-year term indicated by paragraph 5 of Schedule 21. There were no additional aggravating or mitigating features. The court therefore set the minimum term at 30 years from 18 June 2009, with credit for time spent in custody in Germany before trial and sentencing and in the United Kingdom pending extradition.

Not stated in the judgment.