England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 December 2013

MR JUSTICE SILBER:

Introduction

1. On 14 November 2005, James Martin Cahill was convicted at the Central Criminal Court in Dublin of the murder of Brian Fitzgerald. He was sentenced to life imprisonment.
2. He was recently transferred to England to serve his sentence.
3. Under section 273 of the Criminal Justice Act 2003 ("the 2003 Act"), the Secretary of State for the Home Department is required to refer such cases to the High Court for the making of an order under section 269 of that Act, which would fix the minimum term which has to be served before the convicted murderer can be considered for parole.
4. Representations have been made on behalf of James Cahill in detailed and thoughtful submissions prepared by Mr David Josse QC in which the Court's attention was drawn to the decision of the Court of Appeal (Criminal Division) in R v Hull [2011] EWCA Crim 1261.
5. In that case, the Court had to consider the principles upon which the High Court should approach the setting of the minimum term in cases of life prisoners who were transferred to this country, as has happened in James Cahill's case, from a jurisdiction in which a sentence of life imprisonment which means custody for life subject to administrative release. In that case, as in the present case, the transfer was from Ireland.
6. The United Kingdom is a party to the Convention on the Transfer of Sentenced Persons 1983 ("the Convention") by which Member States of the Council of Europe and other signatories agreed: -

"to afford each other the widest measure of cooperation in respect of the transfer of sentenced persons in accordance with the provisions of [the] Convention".

7. Article 4 of the Convention creates the obligation of the Sentencing State, which in the case of James Cahill was Ireland, to provide information to the sentenced prisoner and to the Administering State, which in the present case is England.
8. Article 6 makes provisions that the Administering State should supply supporting documents, including, if requested, a statement of the procedure which could apply to the sentenced person on transfer, including documents concerning the judgment, the law of the Sentencing State, relevant reports upon the prisoner as well as the details of the sentence served.
9. Article 9, which deals with the duties of the Administering State, and states that: -

"1. The competent authorities of the administering State shall:

(a) Continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or

(b) Convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.

2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.

3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions ..."

10. Article 10, which is of great importance, deals with continued enforcement and it states that:-

"1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.

2. If, however, the sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State."

11. Article 11, which is also important as it deals with the conversion of sentences, provides that: -

"1. In the case of conversion of a sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:

(a) shall be bound by the findings as to the facts in so far as they appear explicitly or implicitly from the judgment imposed in the sentencing State;

(b) may not convert a sanction involving deprivation of liberty to a pecuniary sanction;

(c) shall deduct the full period of deprivation of liberty served by the sentenced person; and

(d) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering state may provide for the offence or offences committed.

2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure."

12. The United Kingdom, upon ratification of the Transfer Convention, elected (as it was entitled to do so) not to apply the Conversion procedure for which provision was made in Article 9.1(b) of the Convention, as follows: -

"Declaration contained in a letter from the permanent representative of the United Kingdom, dated 30 April 1985, handed to the Secretary General at the time of deposit of the instrument of ratification, on 30 April 1985.

The United Kingdom intends to exclude the application of the procedure provided for in Article 9(1) (b) in cases when the United Kingdom is the administering state.

Period covered: 1/8/1985 –

The preceding statement concerns Article(s): 3,9."

13. Those provisions in the Convention, and in particular Articles 10 and 11 initially caused me substantial difficulties in this particular case as there was no information which enabled me to determine what sentence should be imposed and which, in the words of Article 10(2) "correspond with that imposed by the sentence to be enforced". Bearing in mind that "it shall not aggravate by nature or duration the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State".

The Evidence from the Republic of Ireland

14. Pitchford LJ ended his judgment in Hull by stating that:-

"For these reasons the appeal will be dismissed. It seems to this court that where transfers are made of mandatory life prisoners either from the Republic of Ireland or from any other Convention country with a similar statutory regime, the High Court will be assisted by the best possible information from the sentencing country as to the likely date of release of the prisoner in that country. Precision may not be possible and a range may be all that can be provided having regard to the wide variety of factors which can affect both the seriousness of the offence and the risk of re-offending. Furthermore, as Finlay CJ observed in Director of Public Prosecutions v Tiernan [1989] ILRM 149 at 153, policy as to release on temporary licence may change with changes in the executive. The better the quality of information from the sentencing state the more likely it is that a judge in England and Wales can achieve the Convention purpose of correspondence."

15. Before I fixed the period to be served by James Cahill, it was therefore necessary to ascertain: -

(a) what Pitchford LJ described as "the best possible information from the sentencing country as the likely date of release of the prisoner in that country" and of course if that is not possible a range would be of value setting out the relevant factors;

(b) details of how long Mr Cahill was held in custody in Ireland; and

(c) any findings of fact made by the trial judge in Ireland relating to Cahill's offence.

16. In response to a request, I duly received information from the Irish authorities on these three matters which was that:-

a) No minimum term is set for life sentenced prisoners in the Republic of Ireland.

The average time a life sentenced prisoner spends in custody in their jurisdiction before being released into the community under the supervision of the Probation Service, on a reviewable release basis, be it weekly, fortnightly, monthly, bi-annually or yearly (all case dependent) is currently 17.5 years.

A life sentenced prisoner is referred to the Parole Board after 7 years in custody. The Board will make recommendations only regarding his/her sentence management, etc.  The decision regarding the granting of temporary reviewable release to life sentenced prisoners in the jurisdiction is a matter for the Minister for Justice and Equality.

b) He was on remand in respect of the murder charge from 16.5.05 to 14.11.2005.  He was sentenced on 14.11.2005 to life and the sentence start date was set at 16.5.05.  We explained in our letter of 25/09/12 (copy attached) that 150 days spent on remand fell to be credited against the minimum term. 

c) We have been informed that "As Mr. Cahill pleaded guilty there is [sic] no Judges findings in this case".

17. James Cahill's counsel Mr David Josse QC was asked to comment and he said that the information given by the Irish authorities did not take the matters any further. He stressed the importance of Article 10.2 of the Convention by which Member States of the Council of Europe and other signatories agreed "to afford each other the widest measure of cooperation in respect of the transfer of sentenced prisoners in accordance with the provisions [the] Convention".
18. The critical provision is Article 10 which deals with continued enforcement and I have set those out in paragraph 10 above - I agree with the note submitted by Mr Josse QC on behalf of James Cahill that Article 10.1 cannot be applied because the "duration of the sentence as determined by the sentencing State" (namely the Republic of Ireland) is uncertain. Such a sentence without having a tariff is in the words of Article 10.2 "incompatible with the law of the administering State" because in this country there has to be either a period specified before the person sentenced can be considered for parole or a finding that the person will not be considered for parole.
19. In consequence, Article 10.2 requires that this Court has to adapt the sanction to the punishment prescribed by its own English law for a similar offence and in particular to assess the minimum term to be served.

The Requirements under English Law

20. Schedule 21 of the 2003 Act provides guidance for the setting of minimum terms but its provisions came into force on 18 December 2003 and so it was not in force at the date of the commission of this murder on 29 November 2002. Accordingly this is a transitional case covered by Schedule 22 of the 2003 Act. Paragraph 10 of Schedule 22 of the 2003 Act states that:-

"The court—

(a) may not make an order under subsection (2) of section 269 specifying a part of the sentence which in the opinion of the court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify as mentioned in paragraph 2(a), and

(b) may not make an order under subsection (4) of section 269 unless the court is of the opinion that, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to give the prisoner a notification falling within paragraph 2(b)."

21. The purpose of this provision is to ensure that the offender has a minimum term which complies with the requirements of Article 7.1 of the ECHR as "It prohibits a heavier penalty being imposed than could be imposed at the time the offence was committed" (R v Sullivan [2004] EWCA Crim 1762 [23]).
22. In that case, it was established that when a Judge has to determine the minimum term for a transitional case under the 2003 Act, he or she has to carry out three distinct exercises, which are that:-

(a) The judge has to initially assess what would be the appropriate period applying Schedule 21; ("Stage 1")

(b) Then as a separate exercise the judge has to consider what period in accordance with the practice followed by the Secretary of State before December 2002 would have notified. This entails following the Guidance given in the Practice Statement (Crime: Life Sentences) [2002] 1 WLR 1789. ("Stage 2");

(c) Then to fix the lower of the two periods reached at Stages 1 and 2 ("Stage 3").; and finally

(d) To consider whether in accordance with Article 10.2 of the Conventions, it is appropriate to. "adapt the sanction to the punishment or measure prescribed by [English] law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State" (" Stage 4")

Stage 1: Schedule 21 CJA 2003

23. The first task under this stage is to ascertain the starting point. Under this schedule, there are four possible starting points and it is appropriate to start with the highest and then work downwards.
24. The highest starting point is a whole life order which is only appropriate where the seriousness is exceptionally high (paragraph 4(1)). This is such a highly exceptional category so that the killing in this case would not fall within it. The next category down is for cases which do not fall in the highest category but where the seriousness is still particularly high for which the starting point is 30 years (paragraph 5(1)).
25. Mr Josse accepts correctly in my view that it is this 30 year starting point which is appropriate in this case as James Cahill committed a contract killing. Indeed Schedule 5(2) states that the 30 year starting point is appropriate for a killing "done for payment or done in the expectation of gain as a result of the death" and also "for a murder involving the use of a firearm". Indeed in R v Hector Cedeno [2006] EWHC 3259 (QB) it was held that a contract killing was a murder done with the expectation of gain or for payment.
26. The next stage to look at is to consider the aggravating and mitigating factors so as to adjust the starting point if appropriate. Starting with the aggravating features this was not merely a contract killing but further aggravating factors are that it was committed with a gun. Mr Josse contends that these aggravating factors were already taken into account in determining that the starting point would be 30 years as being a case where the seriousness "is still particularly high". I consider that where more than one of the factors specifically stated in Schedule 21 paragraph 5 which leads to the 30 years term is present, then the additional factors constitute aggravating factors. In other words a contract killing carried out with a gun is worse than a different kind of contact killing. In consequence, the starting point has to be increased to 34 years.
27. There are mitigating factors in this case as James. Cahill pleaded guilty at the first available opportunity. This leads to a discount of 1/6 rather than 1/3 discount which is given for other cases with a determinate sentence.
28. A potent mitigating factor is, as the report from the Garda explains, James . Cahill assisted the authorities in that he not merely made a full and detailed statement admitting liability for the murder of Brian Fitzgerald, but additionally he also implicated other gang members who facilitated and organised the murder. James. Cahill gave evidence in the trial of others, who based on his evidence, were charged with Brian Fitzgerald's murder. Only one of those charged, Campion was found guilty and the other were found not guilty. It is said by Mr Josse and not disputed that without this evidence Brian Champion would not have been convicted without the evidence of James Cahill whose evidence he has placed him in real danger.
29. There is evidence contained in a letter from the Garda dated 15 September 2010 that there was an attempt to source a rocket launcher to murder James. Cahill while en route from Portlaise to Dublin to prevent him giving evidence. That letter also states that that he was assessed as being at risk within the Irish prison system and that he could be at risk in the English prison system although the writer of the letter was not aware of any threat in the English prison system.
30. Under section 73 of the Serious Organised Crime and Police Act 2005, where an offender pleads guilty and subsequently enters into a written agreement with the prosecutor the judge may take into account the assistance provided the defendant when sentencing and pass a lesser sentence. There is nothing to suggest that such an agreement was entered in this case but that does not mean that a defendant should not receive a discount to his or her sentence when the assistance provided was outside the statutory framework of the 2005 Act (see paragraphs 5-138 and 5-139 Archbold 2013).
31. In such cases, the common law principles of discounting sentences apply and those principles were summarised by Lord Bingham CJ in R v A and B [1999] 1 Cr App R (S)52). There is some evidence in front of me showing the assistance that James Cahill gave to the prosecution and the risk to which James Cahill puts himself as a result of giving his assistance (paragraph 5-138 Archbold 2013).
32. Taking account of all those factors there would be a discount of 50 per cent for the plea and the help to the police. That would mean that the tariff would have been 17 years less 150 days spent on remand.

Step 2 What would have been the minimum term the Secretary of State would have notified in 2002?

33. At that time, there were two starting points which were "the nominal starting point" of 12 years and the "higher starting point" of 15-16 years. It is accepted by Mr Josse that in this case the starting point had to be 15-16 years. The murder was committed on 29 November 2002.
34. The reason why this would fall in the higher category is that it falls within having the factors of being a contract killing. Further aggravating feature were the use of a firearm (see paragraph IV49.28) and "arming with a weapon in advance" .These factors would have increased the starting point to 22 years. There would then have to be the discount of 50% of the kind to which I have referred. This would leave a sentence of 11 years less 150 days spent on remand.

Stage 3: What is the lower of the two periods reached at Stages 1 and 2?

35. Moving on to stage 3, the obvious conclusion is that the period calculated at Stage 2 of 11 years less 150 days spent on remand is lower than the period of period of 17 years less 150 days spent on remand calculated at Stage 1. So that should be the tariff but subject to Stage 4.

Stage 4: Does the period specified at Stage 3 correspond with the sentence imposed by the Irish Courts?

36. At this stage, my task is to consider whether in accordance with Article 10.2 of the Convention, it is appropriate to:-

"adapt the sanction to the punishment or measure prescribed by [ English] law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State".

37. I have already explained why a tariff of 11 years less period spent on remand is appropriate in English law. In Hull, the Court had to consider what I have described as the Stage 4 issue and on the question of the correct approach, it concluded that:-

(a) The function of the High Court is to adapt the Irish sentence for the purpose of its enforcement in England and Wales in the context that the maximum term in both countries was "whole life". Nevertheless, in neither country is it likely that the custodial element of the penalty would be for life, although in both countries the custodial part of the penalty could result in custody for life (paragraph 46);

(b) "A mandatory life sentence has the same legal nature in Ireland and in the United Kingdom only to the extent that each is a sentence of imprisonment for life. The difference between the two penal systems is that the United Kingdom recognises that a mandatory life sentence may require either custody for life or, depending upon the recommendation of the Parole Board as to the safety of the public, early release on licence from custody once the punitive element of the sentence has been served. In the UK the assessment of a minimum punitive or whole life term is a judicial decision made by the trial judge or the High Court. In the Republic of Ireland the sentence must be served in custody for life, subject to the power of administrative temporary release on licence, habitually exercised by the Minister upon criteria similar to those considered partly by the trial judge or High Court and partly by the Parole Board in England and Wales" (paragraph 47);

(c) "A judge performing a review under section 273 of a sentence of life imprisonment imposed in the Republic of Ireland has, in theory, three possible approaches available: Either (1) the judge must impose a whole life term, subject only to compassionate statutory release by the Secretary of State, which is not the equivalent in the UK of the Irish Minister's power of executive release, or (2) the judge must reach his assessment of the minimum term solely in accordance with schedules 21 and/or 22 of the 2003 Act, and/or (3) the judge should endeavour to give effect to Article 10 of the Convention by seeking to adapt the sentence to achieve correspondence with the punishment as it would have been enforced in the Republic of Ireland" (Paragraph 51);

(d) "It seems to this court that in the absence of reliable information from the Ministry of Justice in Ireland as to the way in which the Minister was likely to exercise his statutory discretion, the judge has no alternative but simply to apply section 269 and schedules 21 and 22 to his assessment of the minimum term:" (paragraph 53); and

(e) It rejected the submission that because those sentenced to life imprisonment in Ireland are entitled to a review after 7 years as explained in paragraph 16 above, the same principles should be applied by this Court (paragraph 54).

38. In consequence, the tariff figure specified at Stage 3 of 11 years less 150 days spent on remand, which has been calculated in accordance with Schedule 21 and 22 of the 2003 Act will be the period which James Cahill will have to serve.