Stephen Paul, Re

Where a prisoner serving an indeterminate sentence is transferred to England and Wales, the court must adapt the sentence so far as necessary to domestic law while preserving its nature and duration as far as possible. The exercise is not a complete re-sentencing under English law. Under section 273 of the Criminal Justice Act 2003, the court must impose either a whole life order or a minimum term order under the Sentencing Code. A whole life order is inappropriate where the sentencing state’s regime allowed later release on the decision of an independent parole authority. The corresponding English sentence should preserve that possibility. The minimum term should reflect the period that had to be served before parole eligibility arose, with release remaining subject to the Parole Board’s assessment of continuing risk.

The Secretary of State referred the case to the High Court under section 273 of the Criminal Justice Act 2003 after the prisoner, who had been sentenced to indeterminate imprisonment in Canada, was transferred to England and Wales. The Canadian sentence followed convictions for attempted murder and breaking and entering a dwelling house to commit an assault with a weapon. The Canadian court designated him a dangerous offender and imposed an indeterminate sentence. Under the applicable Canadian statutory scheme, parole could be considered after seven years, subject to the Canadian Parole Board’s assessment of risk.

The court had to determine whether to impose a whole life order or a minimum term order, and, if the latter, how to make the English sentence correspond with the Canadian sentence without aggravating it.

1. Reference and governing approach. The court made a minimum term order. The minimum term expired on 1 February 2012. The order did not require immediate release; continued detention remained subject to the Parole Board’s assessment of whether confinement was necessary for public protection.
2. Effect of the Convention. The Convention on the Transfer of Sentenced Persons required the United Kingdom to continue enforcing the Canadian sentence, with such adaptation as was necessary under the law of England and Wales. The United Kingdom had excluded sentence conversion under article 11. The relevant task was therefore to impose a corresponding domestic sentence under article 10, without aggravating the Canadian sanction by its nature or duration.
3. Section 273 and the Sentencing Code. Section 273(1) of the Criminal Justice Act 2003, read with article 10, required the court to impose either a whole life order or a minimum term order under section 321 of the Sentencing Code. The court was not passing a fresh life sentence and was not conducting a complete re-sentencing under English law.
4. Choice of order. A whole life order would remove the possibility of future consideration for release by the parole authority. That would aggravate the duration of the Canadian sanction and would not correspond with the sentence imposed in Canada. A minimum term order was therefore required.
5. Calculation of the minimum term. The Canadian sentence required seven years’ detention before parole could be considered, running from arrest, and the Canadian sentencing judge had not increased that period. The corresponding English sentence was a life sentence with a minimum term expiring on 1 February 2012, after which release remained a matter for the Parole Board.