James Cahill
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber |
| Judgment Date | 20 December 2013 |
| Neutral Citation | [2013] EWHC 4025 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2013 |
| Docket Number | Case No: MTS/21/2012 |
[2013] EWHC 4025 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Silber
Case No: MTS/21/2012
Application by
Introduction
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.
He was recently transferred to England to serve his sentence.
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.
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.
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.
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".
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.
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.
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 …"
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."
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."
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."
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
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."
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.
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".
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...
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