Amir Antar, Re

When setting the minimum term for a transferred life prisoner under section 273 of the Criminal Justice Act 2003 or the equivalent provisions of the Sentencing Act 2020, the High Court must determine an appropriate term by reference to the seriousness of the offence and the statutory sentencing framework.

In a non-Convention transfer, the court may also consider the period the prisoner would probably have served in the transferring territory before release. A significant disparity may justify reducing the term indicated by Schedule 21, in the interests of justice. The court must avoid acting as an appellate court on the foreign conviction or sentence. It may also consider transfer-related disadvantage, including separation from family.

The Secretary of State referred the case of Amir Antar, a transferred life prisoner, to the High Court under section 273 of the Criminal Justice Act 2003. He had been convicted of premeditated murder by the Senior Judges’ Court of the Sovereign Base Areas of Akrotiri and Dhekelia and sentenced to life imprisonment, with a recommendation that he serve 16 years before consideration for release on licence.

The transfer was made under the Colonial Prisoners Removal Act 1884, not under the Convention on the Transfer of Sentenced Persons. The central issue was how the High Court should set the minimum term where the foreign recommendation differed substantially from the term that would have resulted from applying Schedule 21 in England and Wales.

1. The court held that section 273 required it to make a minimum term order under section 321 of the Sentencing Act 2020, unless a whole life order was required. The minimum term had to be appropriate, taking account of the seriousness of the offence, relevant custody credit and the general principles in Schedule 21.

2. The statutory framework did not prevent consideration of other relevant factors. The court accepted that protection of the public was not a relevant factor in setting the minimum term: R v Jones & Ors [2005] EWCA Crim 3115. The touchstone remained doing justice in the particular case.

3. The Convention authorities established that adaptation of a foreign sentence was not conversion to ordinary domestic sentencing practice. The sentence had to be respected, subject to adaptation required by compatibility with domestic law. The approach in R v Hull [2011] EWCA Crim 1261 was applicable to Convention cases. The court also noted that the earlier approach in Abdur Khan [2006] EWHC 2826 had proceeded on a mistaken understanding that conversion applied.

4. For a non-Convention transfer, the court adopted the following approach:

   1. determine how long the prisoner would probably have served in the transferring territory before release;
   2. calculate the term that would have been imposed in England and Wales by applying Schedule 21, while avoiding any appellate review of the foreign decision;
   3. set the domestic term if there is no significant difference, subject to custody credit and other relevant factors;
   4. where there is a significant difference, consider the foreign term in deciding whether the domestic term should be reduced in the interests of justice; and
   5. consider any disadvantage arising from involuntary transfer or imprisonment far from home.

5. Applying that approach, the likely foreign minimum was at least 16 years, whereas application of Schedule 21 would have produced 23 years less remand credit. The difference was significant. The absence of enforceable licence conditions in the Sovereign Base Areas was also relevant because it was likely to delay release. The appropriate minimum term was therefore 19 years, less 300 days spent on remand, calculated from 27 June 2016.