Mandatory life sentence for murder - defendant convicted in Scotland and transferred to England - tariff fixed by home secretary following transfer not violating convention right not have higher penalty imposed than applicable at time of offence

R (McFetrich) v Secretary of State for the Home Department [2003] EWHC 1532 (Admin): QBD (Lord Justice Scott Baker and Mr Justice Pitchford): 30 June 2003

The claimant was convicted of murder in Scotland and sentenced to life imprisonment.

In September 1997, before any tariff was set, he was transferred to an English prison at his own request pursuant to section 26(1) of the Criminal Justice Act 1961.

By section 26(4) he was to be treated for the purposes of 'detention, release, supervision, recall or otherwise' as if his sentence had been passed by an English court.

The home secretary - having consulted the trial judge, who recommended a tariff of eight years, and the Lord Chief Justice, who recommended ten to 11 years - set a tariff of 12 years.

In October 2002, he refused to review the tariff and the claimant sought judicial review on the ground that that decision violated his right under article 7 of the European Convention on Human Rights not to have imposed a heavier penalty than that applicable at the time the offence was committed because, had he remained in Scotland, the tariff would probably have been eight years.

Hugh Southey (instructed by Stephensons) for the claimant; Sarah Jane Davies (instructed by the Treasury Solicitor) for the secretary of state.

Held, dismissing the claim, that the 'sentence' in section 26(4) referred to the sentence of life imprisonment and not to the tariff, and so the sentence had not been affected by the fixing of the tariff; that the 'penalty' in article 7 could not be equated with the tariff but referred to the whole penalty, which in the claimant's case was the mandatory sentence of life imprisonment; that the penalty was therefore unaffected by the tariff-setting process, and the facts that the general level of tariff had changed from time to time and that the claimant might have received a lower tariff in Scotland were nothing to the point; and that, accordingly, there had been no breach of article 7 and the home secretary had been obliged by section 26(4) to set the tariff in the manner that he had.