Neutral Citation Number: [2006] EWHC 2826 (QB)

Case No: MTS/107/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/11/2006

MR JUSTICE STANLEY BURNTON

DECISION UPON A REFERENCE UNDER SECTION 273 OF THE CRIMINAL JUSTICE ACT 2003

	IN THE MATTER OF ADBUR RASHID KHAN		

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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

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Mr Justice Stanley Burnton : 

Introduction 
1.	This is a reference by the Home Secretary under section 273 of the Criminal Justice Act 2003 of the case of Adbur Rashid Khan, a transferred life prisoner within the meaning of the Act, for the making of an order determining the minimum term following which the early release provisions referred to in section 269(2) are to apply to him.
2.	The reference raises questions as to the relationship between the provisions of the Convention on the Transfer of Sentenced Persons (“the Convention”), a treaty of the Council of Europe to which non-European States are parties, and sections 273 and 274 of the 2003 Act.
3.	For the purposes of my decision, I have considered certain papers relating to the trial of Khan in Canada, including the warrant of committal upon conviction, and documents relating to his transfer to this country, together with the written submissions on his behalf dated 11 April 2006 of Stephen Alfred of counsel, a letter to the Court from Mr Khan himself, a letter dated 16 March 2006 from Peter Leask J, who before his appointment to the Supreme Court of British Columbia had acted for Mr Khan, although not in his criminal trial or appeal, correspondence relating to Mr Khan’s offer of one of his kidneys for his sister-in–law, and a letter from the National Offender Management Service dated 16 August 2006 responding to Mr Alfred’s contention that section 273 does not apply to Mr Khan because his conviction predated the commencement of the 2003 Act. 
The offence
4.	On 4 August 1995, after a trial by jury before the Supreme Court of British Columbia, Adbur Rashid Khan was convicted of the second degree murder, on 10 December 1993, of his daughter-in-law, Naazish Khan, contrary to section 235 of the Criminal Code of Canada. Naazish Khan was the mother of a 6-week-old baby. She was murdered in the family home. The trial judge, Lysyk J, imposed the mandatory life sentence and recommended that he serve a minimum term of 10 years before being eligible for parole. 
5.	Section 229 of the Canadian Criminal Code defines murder as follows:
Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
6.	First degree murder is a murder that is planned and deliberate; second degree murder is any other murder: see section 231. It follows that it was not proved that the murder was premeditated and planned. However, it follows from the conviction that the jury found that Khan either intended to kill Naazish Khan or intended to cause her injury knowing that the injury was likely to cause her death or was reckless as to whether it would do so.
7.	The relevant provisions of the Criminal Code as to life imprisonment are as follows:
744. Subject to section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be
…
(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefore pursuant to section 745.4;
…
745.4 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.
8.	Mr Khan was born on 22 October 1940, and was therefore aged 53 at the date of the offence. He is a United Kingdom citizen. 
9.	Mr Khan requested repatriation to the UK. In May 2005, the Home Secretary agreed to his repatriation. In June 2005, Mr Khan agreed in writing to his transfer from Canada to the UK. He confirmed that he had been informed in writing of the substance of the international arrangements between Canada and the UK for the transfer of prisoners, and that he had been advised in writing of the legal consequences of his transfer. He was informed that a minimum term to be served by him would be determined by the High Court in this country, and that it was thought that it would be a longer term than that imposed by his trial Judge in Canada. In July 2005, the Canadian government agreed to his transfer. Khan was transferred to the United Kingdom on 19 October 2005 under the powers conferred by section 3 of the Repatriation of Prisoners Act 1984, pursuant to the terms of the Convention.
The Convention provisions
10.	The following provisions of the Convention are relevant. References to the administering State are to the State to which a prisoner is transferred, in this case the United Kingdom.
Article 9 – Effect of transfer for administering State
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. 
4.	Any State which, according to its national law, cannot avail itself of one of the procedures referred to in paragraph 1 to enforce measures imposed in the territory of another Party on persons who for reasons of mental condition have been held not criminally responsible for the commission of the offence, and which is prepared to receive such persons for further treatment may, by way of a declaration addressed to the Secretary General of the Council of Europe, indicate the procedures it will follow in such cases. 
Article 10 – Continued enforcement
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, this 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 – Conversion of sentence
1.	In the case of conversion of 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 insofar 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 statutory provisions
11.	Sections 269, 273  and 274 of the 2003 Act, in so far as relevant, are as follows:
“269 	Determination of minimum term in relation to mandatory life sentence
(1) 	This section applies where after the commencement of this section a court passes a life sentence in circumstances where the sentence is fixed by law.
(2)	The court must, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as “the early release provisions”) are to apply to the offender as soon as he has served the part of his sentence which is specified in the order.
(3)  	The part of his sentence is to be such as the court considers appropriate taking into account— 
(a) 		the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it, and
(b)  	the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.
(4) 	 If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender.
(5)	I n considering under subsection (3) or (4) the seriousness of an offence (or of the combination of an offence and one or more offences associated with it), the court must have regard to— 
(a)	the general principles set out in Schedule 21, and
(b)	any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21.
273 	Life prisoners transferred to England and Wales
(1)	The Secretary of State must refer the case of any transferred life prisoner to the High Court for the making of one or more relevant orders.
(2)	 In subsection (1) “transferred life prisoner” means a person— 
(a)	on whom a court in a country or territory outside the British Islands has imposed one or more sentences of imprisonment or detention for an indeterminate period, and
(b)	who has been transferred to England and Wales after the commencement of this section in pursuance of— 
(i) 	an order made by the Secretary of State under section 2 of the Colonial Prisoners Removal Act 1884 (c. 31), or
(ii)		a warrant issued by the Secretary of State under the Repatriation of Prisoners Act 1984 (c. 47),
there to serve his sentence or sentences or the remainder of his sentence or sentences.
(3)	In subsection (1) “a relevant order” means— 
(a)	in the case of an offence which appears to the court to be an offence for which, if it had been committed in England and Wales, the sentence would have been fixed by law, an order under subsection (2) or (4) of section 269, and
(b)		in any other case, an order under subsection (2) or (4) of section 82A of the Sentencing Act.
(4)	In section 34(1) of the Crime (Sentences) Act 1997 (c. 43) (meaning of “life prisoner” in Chapter 2 of Part 2 of that Act) at the end there is inserted "and includes a transferred life prisoner as defined by section 273 of the Criminal Justice Act 2003".
274 	Further provisions about references relating to transferred life prisoners
(1)	A reference to the High Court under section 273 is to be determined by a single judge of that court without an oral hearing.
(2)		In relation to a reference under that section, any reference to “the court” in subsections (2) to (5) of section 269, in Schedule 21 or in section 82A(2) to (4) of the Sentencing Act is to be read as a reference to the High Court.
(3)		A person in respect of whom a reference has been made under section 273 may with the leave of the Court of Appeal appeal to the Court of Appeal against the decision of the High Court on the reference.
(4)		Section 1(1) of the Administration of Justice Act 1960 (c. 65)(appeal to House of Lords from decision of High Court in a criminal cause or matter) and section 18(1)(a) of the Supreme Court Act 1981 (c. 54)(exclusion of appeal from High Court to Court of Appeal in a criminal cause or matter) do not apply in relation to a decision to which subsection (3) applies.
(5)		The jurisdiction conferred on the Court of Appeal by subsection (3) is to be exercised by the criminal division of that court.
(6)		Section 33(3) of the Criminal Appeal Act 1968 (c. 19)(limitation on appeal from criminal division of Court of Appeal) does not prevent an appeal to the House of Lords under this section.
(7)		In relation to appeals to the Court of Appeal or the House of Lords under this section, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968 (subject to any specified modifications).”
 
12.	It was submitted by counsel for Mr Khan that section 269 of the 2003 Act applies only to life sentences passed after the commencement of the Act, which he stated to be 18 December 2003, and that section 273 is similarly so limited. Mr Khan’s life sentence was passed on 4 August 1995, and on this basis the Court could not determine a minimum term under Chapter 7 of Part 12 of the Act. The object of this submission was to restrict the Court to an order converting the sentence passed in Canada to an equivalent sentence under the law of this country, and to avoid any increase in the minimum term.
13.	The Home Secretary considers that Chapter 7 of the Act is applicable to Khan’s case, and points out that before he agreed to be transferred to this country he was advised that the likely minimum term that would have been determined by the Home Secretary was one of 13 years, greater than that stipulated by the sentence passed by the Canadian trial Judge.
14.	I do not accept the submission that the chronological scope of section 273 is the same as that of section 269. Section 269(1) provides not that Chapter 7 of Part 12 of the Act applies to life sentences imposed after the commencement of the 2003 Act, but only that section 269 so applies. Thus section 269(1) has no application to section 273. Secondly, section 273 contains its own express provision as to its chronological scope: see the reference in section 273(2)(b) to a transfer to England and Wales after the commencement of section 273. The Home Secretary is required by section 273(1) to refer to the High Court for the making of a relevant order any transferred prisoner falling within the definition in subsection (2). Manifestly, a prisoner who is transferred immediately after the commencement of section 273 must have been sentenced to an indeterminate sentence of imprisonment before that date. The commencement date of section 273 was 18 December 2003, which is not the date of the commencement of the Act, but of Chapter 7 of Part 12: see section 336(2). Khan was transferred on 19 October 2005. It follows that the Home Secretary was under a duty to refer his case under section 273 and that it was properly so referred.
15.	Article IX.1 of the Convention confers on this country, as the administering State, the option either to continue the enforcement of the original sentence or to convert the sentence into a decision of this country, substituting for the original sentence one prescribed by English law. Since the sentence of a transferred life prisoner must be referred to the High Court under section 273, it follows that in the case of such a prisoner the original sentence must be converted under Article IX.1(b) into a decision of this country. By Article X.1, this country is bound by the legal nature and duration of the original sentence. Counsel for Khan submits that the duration of the original sentence was 10 years. I disagree. The legal nature of the original sentence was custodial; its duration was for the term of his life. Khan’s counsel’s submission confuses the minimum duration of the original sentence with its actual duration, which was for Khan’s life. The potential for release on parole did not reduce or quantify the duration of the sentence. Even if Khan had been released in Canada on parole, Khan’s sentence would not have expired.
16.	If Khan’s case were to be considered in the same way as a domestic murder, under section 269(2) or (4), as required by section 273(3), I should have determined the minimum term to be served as one of between 10 and 12 years, less the period of remand in custody. The murder was not of exceptionally high or particularly high seriousness within paragraphs 4 or 5 of Schedule 21. It follows that the appropriate starting point is 15 years. There are applicable mitigating factors. The facts of the murder are exiguously set out in the papers before me, but it follows from the conviction for second degree murder that there was a lack of premeditation; and since there is nothing to show that there was an intent to kill, I must proceed on the basis that Khan was reckless as to whether his daughter-in-law died as a result of the injuries he inflicted on her. In addition, he was a man of good character. 
17.	However, in my judgment I should exercise my discretion under the Act so as to ensure that this country complies with its obligations under the Convention. Article XI.1(d) prohibits the administering state from aggravating the penal position of a sentenced person. That an increase in a potential custodial term is an aggravation of the penal position of an offender is confirmed, if confirmation is required, by the fact that Article XI.1(d) requires the administering State not to apply any minimum applicable under its own law. In my judgment, to determine a minimum term in excess of the 10 years fixed by Lysyk J would be to aggravate the penal position of Khan. 
18.	For these reasons, I shall determine the minimum term to be served by Khan as 10 years. I am required by section 274(2) and section 269(3)(b) to take into account any direction that would have been given under section 240 if he had been sentenced to a term of imprisonment in relation to the period of his remand in custody. I see no reason why the whole of that period should not be taken into account in calculating the minimum term. I have been informed, not surprisingly, that a similar deduction would be made under Canadian law. The period of remand in custody was 19 months and 23 days, and accordingly the period to be specified in the order of the Court after which the early release provisions are to apply to Mr Khan is 7 years and 129 days.