England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/03/2016

1. On 08 December, 2008, Philip Peter McNally, d.o.b. 22 July, 1958, was convicted by the Mainz Regional Court of murder.

On 18 June, 2009, he was sentenced to a term of life imprisonment. The certificate of the State of Enforcement, dated 01 July, 2011, states that the '15-year date for a hearing' is to be 1^st May, 2023.

This has been interpreted by the National Offenders Management Service as a 'tariff' of 15 years: see the letter of James Hough to the Administrative Court, dated 28 August, 2013. I believe this to be an erroneous understanding of German Law.

Section 57(a) of the German Criminal Code provides (in English translation),

"Conditional early release - life imprisonment

(1) The court shall grant conditional early release from a sentence of imprisonment for life under an operational period of probation, if

1. 15 years of the sentence have been served;

2. the particular seriousness of the convicted person's guilt does not require its continued enforcement: and

3. the requirements of Section 57(1) first sentence numbers two and three are met."

They are that release is appropriate "considering public security' interests" and the convicted person consents.

Accordingly, under German Law, a convicted person sentenced to life imprisonment is entitled to have his sentence reviewed after fifteen years; but the terms on which the review is conducted are different from those set out in Section 28 (6) of the Crime (Sentences) Act 1997.

Except when directing that the early release provisions are not to apply to an offender, Section 269(3) of the Criminal Justice Act, 2003, requires a court in England and Wales to set a minimum term taking into account (only) the seriousness of the offence. Thus, under the law of England and Wales, the seriousness of the offence is taken into account once only: when the minimum term is set. Under German Law, it must be taken into account under Section 57a(1).2 at the fifteen year review as well as when the sentence of life imprisonment was imposed. Because, for the reasons which I explain below, the sentencing court must have treated the case as 'especially serious' and because it is highly likely that the reviewing court would require that 'the particular seriousness of the convicted person's guilt' would require continued enforcement of the sentence, the review date set by the sentencing court should not be treated as if it were the equivalent of a minimum term set under Section 269(2) of the Criminal Justice Act 2003.

2. The crime for which the defendant was sentenced occurred on 26 April, 2002. He was let into a house in Worms- Leiseiheim by a woman whom he knew, H. When she refused to give him money, he decided to force her to reveal and hand over jewellery and gold kept in the house. He put his hand over her mouth and punched her in the face. When she escaped into a child's bedroom and locked the door, to call the Police, he kicked in the door, tore the telephone cable out of the wall and dragged her into the bedroom shared by her and her husband. He threw her onto the bed, bound her arms and legs with adhesive textile tape and gagged her. He removed her wedding ring, forced her to divulge the places where jewellery, cash, a savings book and a gold bar were kept and took them and other cash and belongings which he stuffed into a cloth bag. He knew that H had recognised him and would report him to the Police, so he decided to kill her. He rolled her, still bound and gagged, into a bath, filled it with water, and held her head under water until she drowned. When she was dead, he violated her corpse by penetrating her anally with his penis.
3. Under Section 212(2) of the German Criminal Code, the penalty for murder 'in especially serious cases' is imprisonment for life. It is certain that the German Court must have regarded this murder as an especially serious case.
4. The defendant was transferred to serve his sentence in England and Wales under a warrant issued by the Secretary of State under the Repatriation of Prisoners Act 1984. Section 273(1) and (3)(a) of the Criminal Justice Act 2003 requires the Secretary of State to refer the case of the defendant, as a transferred life prisoner, to the High Court for the making of an order under sub section (2) or (4) of Section 269. That requires me to determine whether or not the seriousness of the offence is such that I must order that the early release provisions are not to apply to him and, if not, to set a minimum term, taking into account the seriousness of the offence. I am required by Section 269(5)(a) to have regard to the general principles set out in Schedule 21.
5. I do not consider that the seriousness of the offence is exceptionally high under paragraph 4 of Schedule 21 and so would not be minded to make a whole life order. I am, however, satisfied that the seriousness of the offence is particularly high, for two of the reasons identified in paragraph 5(2)(d) and (e): the victim was killed in an attempt to permit the defendant to evade justice; and it did involve, in the sense that it was immediately followed by, sexual conduct. There are no aggravating or mitigating features. Accordingly, I was minded to set the minimum term at the starting point indicated by paragraph 5: 30 years.
6. Because the defendant may not have appreciated that, when transferred to serve the remainder of his sentence to England and Wales, a minimum term substantially higher than the period set for first review by the German court might be imposed upon him, I believed that it would be unjust not to allow him the opportunity of making further representations about it, preferably by or with the assistance of a lawyer. To that end, I deferred setting the minimum term until 11 March, 2016 and ordered that any further representations should reach the Administrative Court office by Friday 26 February, 2016. None has been received.
7. For the reasons given, I set the minimum term at 30 years from 18 June 2009 less the time spent in custody in Germany pending trial and sentencing and in the UK pending extradition for this offence.