Douglas, Re

On a reference concerning a transferred life prisoner, the High Court must determine afresh the minimum term that would be appropriate under the Criminal Justice Act 2003, while respecting the sentencing court’s findings of fact and the Convention governing transfers of sentenced persons.

The court may reduce the otherwise appropriate minimum term where imprisonment in England and Wales imposes additional hardship because the prisoner has been transferred far from home. The reduction reflects the increased punitive effect of detention, but must remain proportionate to the seriousness of the offence. Time already spent in custody must be credited.

The Home Secretary referred the case under section 273 of the Criminal Justice Act 2003. The prisoner had been convicted in the Cayman Islands of murder and possession of an unlicensed firearm and sentenced to life imprisonment with a minimum term of 34 years. The Cayman Islands Court of Appeal upheld that term.

After transfer to England and Wales, the High Court had to determine whether a whole-life order was appropriate and, if not, the minimum term before the early-release provisions applied. The central issues were the effect of the Cayman Islands sentence, the binding nature of the foreign courts’ factual findings, the additional hardship caused by transfer, and credit for time already served.

1. The reference was determined under section 273 of the Criminal Justice Act 2003. The court was required to make the order that would have been appropriate under section 269 if the offences had been sentenced in England and Wales.

2. A transferred prisoner’s sentence remained life imprisonment. The court was bound by the findings of fact apparent from the sentencing judgment and the Cayman Islands Court of Appeal’s judgment. Article 11(a) of the Council of Europe Convention confirmed that position. The court was also required to ensure that the transferred prisoner’s penal position was not aggravated and that custody already served was credited.

3. Applying Schedule 21, the offence was particularly serious but not exceptionally serious. A whole-life order under section 269(4) was therefore inappropriate. The appropriate domestic starting point was a minimum term of 30 years, increased to 34 years by the significant planning, premeditation, firearm use, public execution and other aggravating features. The court treated the absence of further aggravating features as non-mitigation.

4. The exercise under section 269 was a fresh sentencing exercise, not an appellate review of the Cayman Islands term. Nevertheless, the prisoner’s involuntary transfer thousands of miles from home imposed additional hardship and increased the punitive effect of imprisonment. That hardship justified a reduction, although the reduction could not be substantial because the seriousness and retributive element of the crime remained unchanged.

5. The minimum term was fixed at 31 years. The whole period in custody from 15 July 2015 was to be deducted, calculated in the judgment as 1,582 days.

• Cayman Islands Grand Court: sentenced the prisoner to life imprisonment with a 34-year minimum term.
• Cayman Islands Court of Appeal: upheld the minimum term.
• High Court (Queen’s Bench Division): on the Home Secretary’s section 273 reference, determined a 31-year minimum term, subject to credit for custody already served.