How 15 years can become 30
[This post from Christine Morgenstern of the University of Greifswald. You can also hear her (at least for the next few days) discussing our final report on German radio by following this link: Christine Morgenstern on Offender Supervision in Europe]
Yesterday, I learnt about a recent decision in an Anglo-German murder case. It is a striking example for existing differences between different European jurisdictions, the hardships of cross-border cases for the individual affected – and it is a good example of why we need mutual knowledge and understanding of criminal justice issues in Europe…
In 2002, a British citizen – I will call him X – who had worked in Germany for many years robbed a German woman he knew in her home. Fearing that she had recognised him and would report him to the Police, he killed her. When she was dead, he violated her corpse. In 2008, he was convicted in Germany of murder, which in Germany as in the UK, carries a mandatory life sentence. In Germany, the offender is eligible for early release after 15 years unless she or he poses a grave danger to society (and most murderers serve 18-19 years; this is why we speak of a “15 + x years sentence”). An exception is made when the murder is seen as particularly heinous (for example, if there were multiple murders or if the murder was extraordinarily cruel). In such cases the reviewing court includes consideration of the heinousness of the offence in its consideration of the case after 15 years and for this reason may add a few further years to the 15 year minimum in addition to any more time that might be required because of the danger that the offender poses to society The exception that has to be spelled out clearly by the trial court. This was not done in Mr. Xs case; his offence was seen as – terrible as this may seem – an “ordinary murder”.
The case has two European dimensions: First, the German authorities only got hold of the X because of police information shared Europe-wide: For many years, they had no clue about the perpetrator of the crime because X had relocated to the UK. Only when his fingerprints were taken in a case of domestic violence, could the German case be solved. The suspect was transferred to Germany on a European Arrest Warrant.
The second European aspect has to do with his transfer back to the UK. X started to serve his sentence in Germany but was later, presumably because he applied for it himself, transferred to the UK under the Repatriation of Prisoners Act 1984. This Act, according to its wording (which is in accordance with similar legislation of other European countries and the European Convention on the Transfer of Sentences Persons), is concerned with “close ties which that person has with the United Kingdom”, that is, it assumes that reintegration possibilities are better ‘at home’.
Now, where is the problem? In Germany X would have to serve 15 years, and then would be released if that were justifiable with regard to public safety – that is, if he is not (too) dangerous any more. Nevertheless, it remains a “life sentence”; this is why the English law in transfer cases foresees the referral of the case to the High Court. Here, a minimum term (“tariff”) has to be set, before the person transferred can apply for parole. The National Offender Management Service serves as liaising authority with regard to Prison Transfer Agreements. It interpreted the German provision for review after 15 years as a ‘tariff’ in the English sense. The judge, however, wrongly believed that the German court had regarded the murder as exceptionally heinous. Accordingly he reassessed the seriousness of the case (without having much information on the facts) and concluded that under English law the appropriate minimum term would be 30 years. One reason for this conclusion was a misinterpretation of the German legislation, which admittedly is only understandable with some guidance by experts in German law and leading jurisprudence (but I am afraid that this is true for many countries…).
Nothing in the decision points to the judge having received, let alone heard, counter-arguments from the prisoner. This is in spite of the judge admitting that “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.” The judge therefore deferred his decision for a certain time, but did not receive any representations. When he heard nothing he simply went ahead and imposed the 30-year minimum period before X can be even considered for release.
This may be an extreme example and we don’t know exactly what went wrong: why did X apply for the transfer in the first place? Was he informed of the consequences? Why did he then not do anything against the new tariff? Why did the English judge get the German law and even some of the facts wrong? Why was there no lawyer to represent X? How could this be the outcome of a procedure that is supposed to foster reintegration in the home country? What the case shows, is that there is sometimes a shocking lack of communication, understanding and procedural justice in European cases. This can really make a difference – in this case of 15 years of imprisonment.
 McNally, Re  EWHC 3613 (Admin) (17 March 2016) – it was Dirk van Zyl Smit who informed me about that decision and it indeed takes two to understand it…