England and Wales Court of Appeal (Criminal Division) Decisions

Mason & Anor, R. v [2002] EWCA Crim 699 (22nd March, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NORWICH
Mr Justice Aikens

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 March 2002

Lord Justice Clarke:

Introduction

1. This is the judgment of the court. On 19^th June 2001 in the Crown Court at Norwich before Aikens J and a jury Kenneth Mason and Angela Sellars were convicted of conspiracy to murder (count 1) and sentenced to life imprisonment. The trial had lasted from 6^th June to 19^th July 2001. Mason was also convicted of possessing a firearm with intent to endanger life contrary to section 16 of the Firearms Act 1968 (count 2). A concurrent sentence of life imprisonment was passed for that offence. We shall return below to the basis upon which those sentences were passed.
2. There were originally two co-accused. Christopher Sellars, who is Angela Sellars’ son and is aged 26, was acquitted of count 1. A third count had been added to the indictment which alleged murder against James Griffin. However, after legal argument at the beginning of the trial, no evidence was offered against him and he was acquitted.
3. The applications of Kenneth Mason and Angela Sellars for leave to appeal against sentence were referred to the full court by the Deputy Registrar. On the hearing of those applications we granted both applicants leave to appeal. We shall therefore describe them as appellants.

The Facts

4. At about 1.15 am on 6^th August 2000 Malcolm Dyble was shot dead in the street in Great Yarmouth. He was shot in the neck and died instantly. The presumed murder weapon, a .410 sawn-off shotgun, was found near to the scene of the killing and traces of Mason’s blood were found on it. There was a history of conflict between the appellants and Dyble, all of whom drank in the same public house, The Silk Mills in Great Yarmouth. It was acknowledged that Dyble was a violent and unpleasant man who was disliked by many who frequented The Silk Mills. The appellants had plotted over a period of months to kill him and had ultimately paid £6,000 to a hit man, who was alleged to be the co-accused Griffin, to carry out the killing.
5. On the 5^th/6^th June 2000 Mason had been seen leaving The Silk Mills with a sawn-off shotgun. He fired it through the window of a man called Barry Stone, who was a regular at The Silk Mills, believing Dyble to be in Stone’s house. He then fired at Dyble’s house. The gun he used was alleged to be the same one as was later used to kill Dyble.
6. From 24^th June to 1^st July the appellants were on a boating holiday with Barry Stone and discussed the arrangements and price for having Dyble killed. On the night of the killing Dyble was drunk and hit Mason during an argument. A series of telephone calls took place between the appellants and others before and after Dyble was shot. After one call, Mason was heard to say “it’s done, the man is on the slab”.
7. The appellants were arrested on the evening following the murder. In interview both denied any involvement in the murder and Mason denied having a shotgun. However, as already stated, they were convicted by the jury of conspiracy to murder.

The Sentencing Process

8. The sentencing process before the judge took a somewhat curious course. The correct approach to sentencing both appellants was discussed in detail between the judge, leading counsel for the Crown and leading counsel for both appellants. Indeed, there was a short adjournment during the discussion to enable counsel to research the matter.
9. The discussion centred on four particular statutory provisions: section 3 of the Criminal Law Act 1977 (“the 1977 Act”), section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”), section 82A of the 2000 Act and section 28 of the Crime Sentences Act 1997 (“the 1997 Act”). Section 3 of the 1977 Act provides so far as relevant:

“3. (1) A person guilty by virtue of section 1 above of conspiracy to commit any offence or offences shall be liable on conviction on indictment –

(a) in a case falling within subsection (2) or (3) below, to imprisonment for a term related in accordance with that subsection to the gravity of the offence or offences in question (referred to below in this section as the relevant offence or offences); and ...

(2) Where the relevant offence or any of the relevant offences is an offence of any of the following descriptions, that is to say-

(a) murder, or any other offence the sentence for which is fixed by law;

(b) an offence for which a sentence extending to imprisonment for life is provided; or

(c) an indictable offence punishable with imprisonment for which no maximum term of imprisonment is provided,

the person convicted shall be liable to imprisonment for life ...”

10. Section 109 of the 2000 Act, provided at the material time so far as relevant:

“109 (1) This section applies where –

(a) a person is convicted of a serious offence committed after 30^th September 1997; and

(b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.

(2) The court shall impose a life sentence, that is to say –

(a) where the offender is 21 or over when convicted of the offence mentioned in subsection 1(a) above, a sentence of imprisonment for life

(b) …. ,

unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.

(3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.

(4) An offence the sentence for which is imposed under subsection (2) above shall not be regarded as an offence the sentence for which is fixed by law.

(5) An offence committed in England and Wales is a serious offence for the purposes of this section if it is any of the following, namely-

(a) an attempt to commit murder, a conspiracy to commit murder or an incitement to murder; ...

(g) an offence under section 16 (possession of a firearm with intent to injure), section 17 (use of a firearm to resist arrest) or section 18 (carrying a firearm with criminal intent) of the Firearms Act 1968; and

(h) robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Act.”

11. It is not in dispute that on 14^th March 1986 Mason was convicted of robbery where at some time during the commission of the offence he had in his possession an imitation firearm within the meaning of the Firearms Act 1968. It follows that he had previously committed a serious offence within the meaning of section 109(1)(b) by reason of section 109(5)(h). Conspiracy to murder is also a serious offence within the meaning of the section by reason of section 109(5)(a). So too is the possession of a firearm with intent to endanger life by reason of section 109(5)(g). It follows that, by section 109(2), the court was bound to impose a life sentence upon Mason by reason of his conviction on both counts 1 and 2 unless it was of the opinion, in relation to one or other count, that there were exceptional circumstances relating to either of the offences or to the offender which justified it in not doing so.
12. The judge held that there were no such exceptional circumstances and the contrary is not argued on this appeal. It follows that the law required the court to impose a sentence of life imprisonment on Mason on both counts. Initially, the judge did precisely that. He said this:

“Kenneth Mason, the jury have convicted you unanimously of two offences. First, of conspiracy to murder Malcolm Dyble. The result of that conspiracy was that Malcolm Dyble was murdered at approximately 1.15 am on 6^th August 2000. As a matter of law I have to sentence you in accordance with the gravity of the offence. I also have to take account of the fact that you are subject to the provisions of section 109 of the Powers of Criminal Courts Sentencing Act 2000. Because you have been convicted of a previous serious offence, namely armed robbery, I am obliged to pass on you a sentence of life imprisonment unless there are exceptional circumstances.

It is urged upon me by Miss Lynch that there are exceptional circumstances in this case. She submits that the principle is whether or not there is a need to protect the public in the future from you. She submits that there is not that pressing need in your case because the previous serious offence was committed so long ago and other offences which do not fall into that category under the statutory provisions that have committed since then mean that the exceptional circumstances can be applied in your case.

I cannot accept that submission. In my view there are no exceptional circumstances which apply to your case. Accordingly, on count 1 I sentence you to life imprisonment.

On count 2 the position is there that the maximum sentence must be as a result of section 109 life imprisonment, unless, again, there are circumstances which are exceptional. For the reasons that I have given in my view there are no exceptional circumstances, so on count 2 I sentence you to life imprisonment.”

13. There then ensued further submissions from and discussions with counsel. As a result, the judge said this:

“As a result of provisions relating to sentencing that have been drawn to my attention by both Mr Parkins for the prosecution and Miss Lynch and Mr Rouch, defence counsel in this case, I intend to vary the sentences that I have passed on the first defendant in this case, Kenneth Mason.

In relation to count 1, the conspiracy to murder charge, I pass a sentence of life imprisonment upon Kenneth Mason. I do so pursuant to the power conferred upon the courts by the Criminal Law Act 1977 sections 3(1)(a) and 3(2)(a). I have reached the conclusion that life imprisonment is appropriate and in accordance with the gravity of the offence in question. Kenneth Mason has been found guilty of conspiracy to murder in this case and the consequence of the conspiracy was that Malcolm Dyble was executed, in effect, in the early hours of 6^th August 2000. On my view of the evidence, Mr Mason was central to that conspiracy.

In relation to count 2, which is the count that Kenneth Mason possessed a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968, I vary the sentence as follows: Mr Mason was convicted in March 1986 of armed robbery with a replica revolver, for that offence he received five years imprisonment. That offence constitutes a serious offence within the terms of section 109(5)(h) of the Powers of Criminal Court Sentencing Act 2000. Mr Mason has now been convicted of possession of a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968. That is also a serious offence pursuant to section 109(5)(g) of the Powers of Criminal Courts Sentencing Act 2000.

Conspiracy to murder is itself a serious offence within section 109(5)(a) of the same Act. Accordingly Kenneth Mason is in the position of having been convicted of a serious offence, is over 18 and has been convicted previously of another serious offence. As a consequence Kenneth Mason is liable to automatic life imprisonment unless there are exceptional circumstances. As I have already pronounced, and as I repeat, in my view there are no exceptional circumstances in this case. There would be exceptional circumstances if it was established that there would be no need for protection of the public in future. However, in circumstances where Mr Mason has been convicted of possession of a firearm with intent to endanger life and was convicted in March 1986 of an offence of robbery with a replica revolver, and in the light of the fact that he has also been convicted of conspiracy to murder, in my view there is ample evidence to say that the public does need protection from Kenneth Mason. Accordingly, I will pronounce sentence on Mr Mason in accordance with section 109 of the Act 2000 and section 28 of the Crime Sentences Act 1997.”

We will return to the nature of that judgment in a moment.

14. The difference between the two approaches seems to have been essentially this. On the first occasion the judge imposed life sentences under section 109 of the 2000 Act, but he did not give any further direction or indication as to how long Mason should serve before being considered for release. On the second occasion the judge referred specifically to section 3(1)(a) and 3(2)(a) of the 1977 Act and he expressed the conclusion that life imprisonment was appropriate and in accordance with the gravity of the offence in question, namely conspiracy to murder. As we read his judgment, he did not apply the provisions of section 28 of the 1997 Act, as amended, to the time to be served by Mason under the life sentence which he imposed on count 1 for conspiracy to murder. He did, however, do so in the case of the life sentence which he imposed on count 2 for possession of a firearm with intent to endanger life.
15. Immediately after the passage quoted above, the judge said this:

“In doing so I have to pronounce in open court the part of the sentence to be served before the defendant can be considered for release, having pronounced as I have already said that he is subject to an automatic life sentence. In deciding the part of the sentence to be served before he can be considered for release I have to take into account the seriousness of the offence, the effect of the time spent in custody and make a comparison with sections 33(2) and 35(1) of the Criminal Justice Act 1991.

Having done all that, I have come to the conclusion that the appropriate determinate sentence would be 16 years. I have to subtract that from 50 per cent to take account of the fact that I am considering the part of the sentence to be served before he can be considered for release. I also have to take away the period that Kenneth Mason has spent in custody. I am informed that the total period that he has spent in custody is 310 days. Therefore the part of the sentence to be served by Kenneth Mason before he can be considered for release is seven years and 55 days.”

16. We return to the statutory provisions which led to that approach below. The judge did not, however, adopt that approach to the period to be served before Mason could be considered for release from the sentence of life imprisonment which he passed on count 1. Although we do not have a transcript of that part of the proceedings, it is agreed that at some stage he said that he would write to the Lord Chief Justice with a recommendation that the ‘tariff’ should be 14 years. As we understand it, and as further discussed below, by that he meant that Mason should serve 14 years before being considered for release. He thus indicated in effect that he would adopt the same approach as he would have adopted in the case of a defendant convicted of murder and sentenced to a mandatory sentence of life imprisonment. In such a case a sentence of life imprisonment is “fixed by law”. No-one suggested to the judge that this was other than the correct approach.
17. The judge adopted the same approach in the case of Angela Sellars, upon whom he imposed a discretionary sentence of life imprisonment under section 3 of the 1977 Act. In her case he said this on the first of the two occasions referred to above:

“Angela Sellars, you too have been convicted of conspiracy to murder Malcolm Dyble. In your case too the result of that conspiracy was the death of Malcolm Dyble by being shot.

In your case Mr Rouch submits that that life imprisonment should not be imposed upon you and that I should pass a determinate sentence. He submits that this should be the case because of your history, where you have only been involved with the courts once in relation to the supply of drugs, and that was over 15 years ago at the Sheffield Crown Court. He further submits that the evidence in the case strongly suggests that you were not primarily involved with the conspiracy and were not one of the leaders. He also submits that your judgment would have been impaired by your severe alcohol abuse.

I have considered those submissions, but on my view of the evidence you were very plainly involved in this conspiracy as much as Mr Mason. The result of it was the same, in other words, the death by execution, in effect of Malcolm Dyble. Accordingly, I sentence you also to life imprisonment.”

18. In the case of Angela Sellars the judge also adopted the same approach to the period to be served as he did on count 1 in the case of Kenneth Mason. He said that he would write to the Lord Chief Justice in the same terms as in the case of Mason, recommending in effect that she serve 14 years imprisonment before being considered for release.
19. At some stage after the sentencing process was complete, the judge reflected on the position and concluded that it was in some respects not correct. He accordingly wrote both to counsel and to the Registrar. It was as a result of the letter to the Registrar that the Deputy Registrar referred the applications for leave to appeal to the full court. It was in these circumstances that we thought it appropriate to grant leave to appeal.

The Correct Approach

20. There are essentially three types of life sentence, a mandatory sentence which is a sentence “fixed by law”, an automatic life sentence imposed under section 109 of the 2000 Act and a discretionary life sentence. In each case the sentence imposed is a sentence of life imprisonment, but the correct approach of the sentencing judge is not the same in each case. We take them in turn.

Mandatory Life Sentence

21. In the case of adults, section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 (“the 1965 Act”) provides that a person convicted of murder shall be sentenced to imprisonment for life. It follows that in such a case life imprisonment is a sentence fixed by law.
22. In order to assuage potential public concern about the possible release date of those convicted of murder who would previously have been sentenced to death, section 1(2) of the 1965 Act provides, so far as relevant, as follows:

“On sentencing any person convicted of murder to imprisonment for life the Court may at the same time declare the period which it recommends to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State orders the release of that person on licence …”

Such a power is discretionary and in principle exists alongside the following procedure.

23. After any conviction for murder, whether or not a public recommendation is made under section 1(2) of the 1965 Act, the judge makes his or her recommendation in writing to the Lord Chief Justice, who in turn makes a recommendation to the Home Secretary. The approach in the case of an adult sentenced to a mandatory life sentence for murder can now be seen from the terms of a practice direction which was issued by the Lord Chief Justice, Lord Woolf, on 27^th July 2000 after the decision of the European Court of Human Rights in the cases of Thompson and Venables. The practice direction, which is reported at [2000] 1 WLR 1655, includes the following:

“I will take as my starting point the existing approach adopted in the case of adults sentenced to a mandatory life sentence. In the case of adults the usual length of tariff, or punitive term, (which means the amount of time actually served by a person convicted of murder in order to meet the requirements of retribution and general deterrence) will be a period of 14 years before the possibility of release arises for consideration at all.

In all these cases this term may be increased or reduced to allow for aggravating and mitigating circumstances.”

The Lord Chief Justice then sets out examples of aggravating and mitigating features and concludes as follows:

“The approach set out above, which I intend to adopt, is based on that applied by judges and myself when establishing the tariff period to recommend to the Home Secretary in the case of all mandatory sentences for murder (ie where the sentence is life imprisonment in the case of an adult defendant).”

24. That was the approach adopted by the judge in the case of the life sentences imposed on both Mason and Sellars for conspiracy to murder. As stated above, he said that he would recommend a tariff period of 14 years in both cases. As indicated in the practice direction, that was the period that the judge concluded should be actually served by each defendant to meet the requirements of retribution and general deterrence. Although counsel encouraged the judge to adopt that approach on 19^th July 2001, it is now submitted on behalf of both appellants that it was not the correct approach to sentences of life imprisonment other than mandatory life sentences. We agree. It applies only in such cases and does not apply to automatic life sentences passed under section 109 of the 2000 Act or to discretionary life sentences passed, for example, under section 3 of the 1977 Act.

Automatic Life Sentence

25. An automatic life sentence is a sentence which the court is required to pass under section 109 of the 2000 Act. By section 109(4), such a sentence is not an offence the sentence for which is fixed by law. The correct approach in such a case is essentially that adopted on count 2 in Mason’s case. It derives from the second and third particular statutory provisions to which we referred earlier, namely section 82A of the 2000 Act and section 28 (as amended) of the 1997 Act.
26. Section 82A of the 2000 Act, which was inserted into the 2000 Act by section 60 of the Criminal Justice and Court Services Act 2000, provides:

“(1) This section applies if a court passes a life sentence in circumstances where –

(a) the sentence is not fixed by law; or

(b) the offender was aged under 18 when he committed the offence.

(2) The court shall, unless it makes an order under subsection (4) below, order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this section as the ‘early release provisions’) shall 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 shall be such as the court considers appropriate taking into account –

(a) the seriousness of the offence, or the combination of the offence and one or more offences associated with it;

(b) the effect which it would have given under section 87 below (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment; and

(c) the early release provisions as compared with section 33(2) and 35(1) of the Criminal Justice Act 1991.

(4) If 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) above, the court shall order that, subject to subsection (5) below, the early release provisions shall not apply to the offender.”

It will be the rare case indeed in which it will be appropriate for the court to exercise the power conferred by subsection (4) and to order that no order should be made under subsection (2). This is not such a case.

27. By section 60(4) of the Criminal Justice and Court Services Act 2000, in relation to any time before the coming into force of section 87 of the 2000 Act, section 82A of that Act shall have effect as if, in paragraph (b) of subsection 3, for the words in italics above, there were substituted the words “which section 67 of the Criminal Justice Act 1967 would have had”. The effect of those provisions is to ensure that the time to be served before being considered for release takes into account time in custody before sentence is passed, which in the case of Mason was 310 days.
28. The significance of sections 33(2) and 35(1) of the Criminal Justice Act 1991, which are referred to in section 82A(3)(c), is that under section 33(2) a prisoner who received a long term determinate sentence would be entitled to be released after serving two-thirds of his sentence and under section 35(1) might be released after serving only half of his term.
29. Section 28 of the 1997 Act, as amended, now reads, in so far as it applies or appears to apply to the present case, as follows:

“(1A) In this chapter –

(a) references to a life prisoner to whom this section applies are references to a life prisoner in respect of whom an order has been made under subsection (2) of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 ... ; and

(b) references to the relevant part of his sentence are references to the part of his sentence specified in the order ...

(1B) But if a life prisoner is serving two or more life sentences –

….

(b) the provisions of subsections (5) to (8) below do not apply in relation to him until he has served the relevant part of each of them.

….

(5) As soon as –

(a) a life prisoner to whom this section applies has served the relevant part of his sentence; and

(b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence.

(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless –

(a) the Secretary of State has referred the prisoner’s case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time –

(a) after he has served the relevant part of his sentence; and

(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and

(c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one-half of that sentence;

and in this subsection ‘previous reference’ means a reference under subsection (6) above or section 32(4) below.”

30. By section 82A(1), the section applies to sentences of life imprisonment where the sentence is not fixed by law. It thus applies both to automatic life sentences and to discretionary life sentences, as for example under section 3 of the 1977 Act: see eg West [2001] 1 Cr App R (S) 103. The correct approach was discussed in detail by Thomas J, giving the judgment of the court in Marklew and Lambert [1999] 1 Cr App R (S) 6 and by Bell J, giving the judgment of the court in Isa McBean [2002] 1 Cr App R (S) 430.
31. Section 28 of the 1997 Act replaced section 34 of the Criminal Justice Act 1991 and has the same effect, subject only to the treatment of time on remand: see Marklew and Lambert at pp 13-14. Thus the underlying approach is still that set out in a practice direction issued by the Lord Chief Justice, Lord Taylor, in 1993, [1993] 1 WLR 223, as follows:

“1. Section 34 of the Criminal Justice Act 1991 empowers a judge when passing a sentence of life imprisonment– where such a sentence is not fixed by law– to specify by order such part of the sentence (‘the relevant part’) as shall be served before the prisoner may require the Secretary of State to refer his case to the Parole Board.

2. Thus the discretionary life sentence falls into two parts: (a) the relevant part which consists of the period of detention imposed for punishment and deterrence, taking into account the seriousness of the offence and (b) the remaining part of the sentence during which the prisoner’s detention will be governed by considerations of risk to the public.

3. The judge is not obliged by statute to make use of the provisions of section 34 when passing a discretionary life sentence. However, the judge should do so, save in the very exceptional case where the judge considers that the offence is so serious that detention for life is justified by the seriousness of the offence alone, irrespective of the risk to the public. In such a case, the judge should state this in open court when passing sentence.

4. In cases where the judge is to specify the relevant part of the sentence under section 34, the judge should permit counsel for the defendant to address the court as to the appropriate length of the relevant part. Where no relevant part is to be specified, counsel for the defendant should be permitted to address the court as to the appropriateness of this course of action.

5. In specifying the relevant part of the sentence, the judge should have regard to the specific terms of section 34 and should indicate the reasons for reaching his decision as to the length of the relevant part.

6. Whether or not the court orders that section 34 should apply, the judge shall not, following the imposition of a discretionary life sentence, make a written report to the Secretary of State through the Lord Chief Justice as has been the practice in recent years.”

32. In Marklew and Lambert, after setting out the practice direction, Thomas J said (at p 9):

“Following that practice direction, the procedure became well established that a judge, when imposing a discretionary life sentence, should carry out the requirements set out by Lord Taylor CJ in O’Connor (1994) 15 Cr App R (S) 473 at 476:

“The exercise that the judge must perform, therefore, is to decide, first of all, what would be the determinate sentence that he would have passed in the case if the need to protect the public, and the potential danger of the offender, had not required him to impose a life sentence. Having decided what the determinate sentence should be, he then has to take into account s 33(2) and s 35(1) and decide on such proportion of that determinate sentence as falls between a half and two-thirds of it.”

33. Thus in both automatic and discretionary life sentence cases, the correct approach is to identify a period to reflect the seriousness of the offence, which means, in the words of the practice direction, the period of detention imposed for “punishment and deterrence”, which, as we see it, means the same as the expression “retribution and deterrence” in the practice direction dated 27^th July 2000 relating to mandatory life sentences quoted above. It will usually be appropriate to take half of that figure and then deduct the period on remand in order to arrive at the “relevant part” of the sentence, which is the further period which must be served before the prisoner can require the Secretary of State to refer his case to the Parole Board: see eg Isa McBean at p 438.
34. It follows that that is the approach which the judge should have taken to both the sentences of life imprisonment which he passed on Mason. He did so on count 2 but not on count 1. He should not have passed sentence on count 1 on the basis that he intended to follow the procedure laid down in the case of a mandatory life sentence, namely by recommending a tariff period to the Lord Chief Justice, because neither the Lord Chief Justice (save when sitting in this court on an appeal) nor the Home Secretary has any role to play in fixing the “relevant part” of either an automatic or a discretionary life sentence. Rather, the judge should have fixed the appropriate “relevant part” of the sentence as described above.

Discretionary Life Sentence

35. It also follows from the above discussion that, having decided to impose a sentence of life imprisonment on Angela Sellars, the judge should have adopted the same approach in her case and determined the “relevant part” of the sentence. However, Ms Katharine Moore, who has appeared for her on this appeal, submits that a sentence of life imprisonment was wrong in principle. We turn to consider the case of each of the appellants in turn.

Kenneth Mason

36. As already stated, it is not submitted that an automatic life sentence should not have been passed on count 1, or indeed on count 2. It follows that, applying the above approach, the first question is what is the appropriate period to reflect the seriousness of the offence of conspiracy to murder in terms of punishment or retribution and deterrence. One view of the logic of the judge’s approach would be to say that the judge concluded that Mason should serve 14 years before being considered for parole and to hold that the relevant period in his case should be 14 years or 14 years less 310 days, being the equivalent of about 29.7 years (because half of 29.7 less 310 days is about 14 years) or 28 years, depending on how the judge’s remarks are understood.
37. In the course of the argument Leveson J suggested to Mr Potts, who represented Mason on this appeal, that, since, on exactly the same evidence, he might have been prosecuted and convicted for aiding and abetting the murder, he was in effect guilty of murder and should be sentenced on that basis. That suggestion seems to have some logical force and would appear to apply to both appellants because it has not been suggested that a distinction can be made between them in this regard.
38. On the other hand such cases as there are do not support such a high starting point. In particular we were referred to the decision of this court in Daddow [1996] 2 Cr App R (S) 10, where a wife paid a man to kill her husband and was convicted of conspiracy to murder. She was sentenced to 18 years imprisonment. Her co-accused was convicted of both murder and conspiracy to murder and was sentenced to life imprisonment for the murder and to 18 years for conspiracy to murder. It was recommended that he serve a minimum of 15 years. The wife appealed against her sentence. She prayed in aid her husband’s conduct during the course of the marriage.
39. In the course of giving the judgment of the court, Rose LJ said this (at p 13-14):

“The applicant’s responsibility was not diminished. The history of the marriage, as it appears in the contemporaneous medical records, does not begin to suggest that the abuse, sexual or physical, to which the applicant was from time to time subjected was of anything like the gravity which is now sought to be suggested. The fact the applicant’s husband suffered intermittently from depression and did from time to time engage in the sort of behaviour to which we have referred might well have justified the applicant in leaving him or it may be divorcing him or seeking legal advice or injunctive relief against him – one of which she did. But in the judgment of this Court it does not explain or mitigate the applicant’s conduct in entering into a contract to have him murdered.

This was a very grave case. Contract killings chill the blood of right-thinking members of the public, particularly when they occur in a domestic context. The applicant was, in our view lucky not to be indicted for murder. She was present in the house able to help at the time of the killing and had, no doubt, already helped to ensure that her husband was available to meet his fate. The conspiracy of which she was convicted was carefully planned and ruthlessly carried out, presumably for the applicant’s supposed benefit. The planning, in which she played a major role, was spread over many weeks and included, six weeks before the fatal night, the incident on October 11 to which we have referred, which was either a trial run or an aborted attempt; in either case it was well known to the applicant. Immediately following her husband’s execution the applicant, for several hours in the presence of the police, persistently lied to the police and, in due course, she lied again before the jury. It is therefore apparent at all times that remorse has not been a feature of this case.

In our judgment the trial judge was well placed to determine the culpability of each of the defendants before him. The sentence of 18 years in all the circumstances was, as it seems to this Court, entirely appropriate. The application is devoid of merit and is refused.”

Earlier Rose LJ had observed that the court had been referred to a number of authorities on attempted murder, namely Ellis (1995) 16 Cr App R (S) 773, Clement (1995) 16 Cr App R (S) 811 and Evans and Stroud (1995) 16 Cr App R (S) 508, and added (at p 13):

“It is, in our judgment, apparent from those authorities that a sentence of 18 years for attempted murder is, depending on the circumstances of the particular case, by no means excessive. The present case is, in our judgment, graver than one of attempted murder. The charge was one of conspiracy but of course the murder was carried out.”

40. This was not a conspiracy to murder in a domestic context but, subject to that, many of Rose LJ’s observations are appropriate here. All the cases referred to by Rose LJ were cases of attempted murder and it seems that there are comparatively few cases in which the court has considered the appropriate sentence for conspiracy to murder where the murder has been carried out. However, we were referred to Thornton (1994) 15 Cr App R (S) 51, where the appellant was convicted of both conspiracy to murder and attempted murder. The appellant had lived with the victim for 25 years and when the relationship broke up, there was a dispute over a financial settlement. The appellant hired a man to kill the victim. The man pretended that he had killed the victim and was paid £10,000. He had also been promised a further payment of £40,000 out of the victim’s estate. When the appellant discovered that the victim was still alive, he put pressure on him to carry out the murder. As a result a parcel bomb was delivered to the victim which exploded causing her severe injuries. The appellant was sentenced to life imprisonment for both offences. This court held that it was not appropriate to sentence him to life imprisonment but substituted a determinate sentence to 20 years on both counts. As we read the report, the court accepted the judge’s view that these were extremely serious offences. The judge had said to the appellant that it seemed to him that “in terms of your wickedness it matters not whether she lived or died.”
41. We note that of the three cases of attempted murder referred to by Rose LJ, Evans and Stroud had its origins in a domestic relationship and Ellis was a case of attempted murder of a wife but Clement was a case of rape and attempted murder of a stranger. In Clement the applicant pleaded guilty to rape and was convicted of attempted murder. He approached a girl who was walking home late at night. He held a knife to her throat and forced her to go to an alcove below a block of flats, where he raped her twice and forced her to engage in oral sex. She ran away but he chased her and pushed her to the ground before stabbing her in the face and neck and upper body. She suffered 19 knife wounds one of which was life threatening. The applicant was sentenced to life imprisonment with a period of 10 years specified for the purpose of section 34 of the Criminal Justice Act 1991. The applicant did not challenge the life sentence but only the 10 year period. In giving the judgment of the court Stuart-Smith LJ said (at p 815) that it was about as bad a case of attempted murder, barring terrorist offences and offences against police officers, which it is possible to imagine. He also added:

“In our judgment a distinction has to be drawn between cases where there is a pre-existing relationship between the victim and the perpetrator of the offence and those in which there is not such a relationship. Whether that is a logical distinction is not for us to say, but the authorities clearly show that in cases where such a relationship exists or has existed a somewhat lesser tariff is imposed.”

We would, however, observe in the context of that passage that all depends upon the circumstances, and we note that in the passage quoted above from Daddow Rose LJ said that contract killings chill the blood, particularly in a domestic context. However that may be, in Clement the court upheld the period of 10 years on the basis that the ten years was to run from the time the applicant was first taken into custody.

42. We have also considered a number of authorities which were discussed in Smith [2000] 1 Cr App R (S) 212, where the appellant was convicted of murder and attempted murder on the same occasion. He went with another man to a club carrying a loaded gun. They encountered two other men. The appellant gave the gun to his companion and encouraged him to fire at each of the other men. One of the men was killed. He was sentenced to custody for life for murder and 25 years for attempted murder. In giving the judgment of the court Newman J analysed a considerable number of cases, including Donnelly (1983) 5 Cr App R (S) 70, Al-Banna (1984) 6 Cr App R (S) 426, Burton (1990) 12 Cr App R (S) 559, Grant (1992) 13 Cr App R (S) 54, White (1992) 13 Cr App R (S) 108, Davies (1994) Cr App R (S) 533, Clift (1995) 16 Cr App R (S) 1022, Doyle [1996] 1 Cr App R (S) 239, Mortiboys [1997] 1 Cr App R (S) 141 and Shaka Powell [1998] 1 Cr App R (S) 84. Those cases disclose a very wide range of sentences for attempted murder from 8 years in Mortiboys to 35 years in Al-Banna, which the court said stood on its own as a terrorist crime .
43. Newman J summarised the approach which the cases demonstrate in this way (at p 213):

“Taking the cases, as we do, from Donnelly to Shaka Powell in 1998, they disclose that among factors to which particular regard has been paid are the following, although not all of them being exclusively relevant to an offence of attempted murder. First, that an attempt to kill will have been established. Secondly, that the failure to implement the intent will not normally be a cause for indulgence or credit to be afforded to the defendant. Thirdly, the motive for the offence and the degree of premeditation. Fourthly, the recognition of some proportional correlation between the sentence to be imposed and the minimum recommendation the judge would have made had murder been committed. Fifthly, a plea of guilty. Sixthly, the age of the defendant and, seventhly, where there are other matters, as there are in this case, which might affect the totality of the sentence.”

44. The court then discussed the particular facts of some of the cases and concluded as follows (at p 214):

“Next are the cases which form a group particularly relevant to the instant appeal. White, Clift and Shaka Powell share the similarity of being vengeance crimes, either as part of organised crime or some more petty, long standing rivalry.”

Newman J then said that a not guilty plea was at the bottom end of the range (by which he must have meant the shorter end of the range) and that the authorities support a range of between 14 and 20 years in the case of vengeance crimes. He paid particular attention to Clift and Shaka Powell. In Clift a sentence of 18 years was upheld on conviction for attempted murder where the appellant was one of two men who went to the house of a man who was unknown to them. When the man opened the door, one of the men lunged at him with a knife. On a later occasion, after the victim was induced to come to the door of his house, he was shot in the head by the appellant. He was sentenced on the basis that it was intended to be a contract killing, no doubt motivated by some underworld dispute, probably to do with the supply of drugs. In Shaka Powell the appellant was convicted of attempted murder and possessing a firearm with intent to endanger life. He shot a man in the street causing damage to the spine and leaving him permanently paraplegic. As in the case of Clift, the intended killing was either a contract killing or a killing concerned with the enforcement of order among drug dealers. He was sentenced to 25 years for attempted murder and 12 years for possession with intent. The sentence of 25 years was reduced to 20 years’ imprisonment. In Smith the court concluded that it was a case in which, absent any clear motive, there was a grievance between the groups which ran so deep that it gave rise to the two grave offences of murder and attempted murder and that, but for two particular factors, namely that the appellant was serving a sentence for rape and his age, the sentence might well have been right at the top of the range, namely 20 years. In the event it was reduced to 18 years.

45. While cases of attempted murder are different from cases of conspiracy to murder, the approach of the courts to them is in our view of some assistance in a case of conspiracy to murder where the murder is committed. They are certainly of much greater assistance than cases in which defendants have been convicted of conspiracy to murder but in which no attempt to murder has in fact been made. It is no doubt for that reason that the court considered cases of attempted murder in determining the correct sentence in Daddow.
46. In considering Daddow, it must be borne in mind that the court was not laying down guidelines for sentencing in conspiracy to murder cases where the murder is carried out. The court was considering whether a sentence of 18 years was manifestly excessive, so that the observation that the sentence was “entirely appropriate” must be seen in that light. Thus a somewhat longer sentence than 18 years might also have been considered “entirely appropriate”. The fact is that the court sets the tariff for murder at a substantially higher level than for other crimes because of society’s particular abhorrence of the crime of murder. In these circumstances we are of the view that the level of sentence for conspiracy to murder in cases where the murder has been carried out should reflect that fact.
47. On the other hand, we do not think that it would be appropriate to arrive at a determinate sentence for conspiracy to murder by working backwards from the period which the court would be likely to recommend as the ‘tariff’ for murder. The sentence for murder itself has always been treated differently in our sentencing system from sentences for other crimes. Moreover, although it may be that these appellants could have been charged with aiding and abetting the murder of the victim, they were not and we do not know why that is so. In these circumstances we have reached the conclusion that it would be wrong to sentence them as if they had been convicted of murder, which they were not.
48. This was nevertheless a very serious offence. The murder was planned over a considerable period. It is by no means clear why the appellants decided to have Dyble killed. There is, however, no evidence that it was a vengeance killing of the kind that was attempted in Clift or Shaka Powell. On the other hand we must take account of the fact that the conspiracy succeeded, in that a man is dead who would still be living but for the appellants’ agreement that he should be murdered, which is not true in the attempted murder cases.
49. In all the circumstances we have reached the conclusion that, if we were passing a determinate sentence on Mason, the appropriate sentence would be 22 years imprisonment. As appears below that is longer than the 20 years which we have concluded is the sentence which should be passed in the case of Angela Sellars. That is because she has mitigation which is not available to him, to which we return below. In Mason’s case, there is no mitigating feature. He has an extensive criminal record, principally for dishonesty but including the conviction for robbery to which we referred earlier.
50. In order to calculate the “relevant period” it is in our view appropriate to take half of that notional sentence of 22 years and to give Mason credit for the 310 days spent in custody before sentence was passed by the judge on 19^th July 2001. It follows that in Mason’s case we direct that no letter should be written to the Lord Chief Justice with a recommendation that he serve 14 years or any recommendation or, if such a letter has been written, that it have no effect. The sentence of life imprisonment remains, but in accordance with section 82A(2) of the 2000 Act we order that the provisions of section 28(5) to (8) of the 1997 Act shall apply to Mason as soon as he has served the “relevant part” of his sentence. We further order that the relevant part is 10 years and 55 days from 19^th July 2001, which is calculated by taking half of 22 years and giving credit for the 310 days in custody, as at 19^th July 2001. The effect of the order is that Mason is not entitled to require the Secretary of State to refer his case to the Parole Board until that period has elapsed.
51. As to count 2, it is accepted that the judge was bound to impose a concurrent automatic life sentence. However, in the written material lodged on behalf of Mason it is submitted that, in the light of Avis [1998] 2 Cr App R (S) 178, a determinate sentence of 16 years is manifestly excessive for possessing a firearm with intent to endanger life. We see the force of that submission, although this remained a very serious offence on the facts of this case, and we have reached the conclusion that an appropriate period would have been 12 years. The result is that the relevant part would be 6 years less 310 days as at 19^th July 2001.
52. However, that will not affect the date upon which Mason can require the Secretary of State refer his case to the Parole Board because of the effect of section 28(1B)(b) of the 1997 Act, as amended, which is set out above. The effect of that subsection is that, where (as here) a person is sentenced to two concurrent life sentences and the relevant parts of the two sentences are different, he must serve the longer of the two periods before his right to require the Secretary of State to refer his case to the Parole Board arises.

Angela Sellars

53. Ms Moore submits that the judge should not have sentenced Angela Sellars to life imprisonment but should have passed a determinate sentence. She relies upon the principles summarised in Attorney General’s Reference (No 2 of 1996) (Steven Alan Whittaker) [1997] 2 Cr App R (S) 261 and in particular upon the following passage in the judgment of the court given by Lord Bingham CJ (at p 264-5):

“It appears to this court that the conditions may be put under two heads. The first is that the offender should have been convicted of a very serious offence. If he (she) has not, there can be no question of imposing a life sentence. But the second condition is that there should be good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence. By “serious danger” the court has in mind particularly serious offences of violence and serious offences of a sexual nature. The grounds which may found such belief will often relate to the mental condition of the offender. So much is made plain by Wilkinson (1983) 1 Cr App R (S) 105 in particular the passage at 108 where Lord Lane CJ cites the judgment of Lawton LJ in Pither (1979) 1 Cr App R (S) 209 and continues:

“It seems to us that the sentence of life imprisonment, other than for an offence where the sentence is obligatory, is really appropriate and must only be passed in the most exceptional circumstances. With a few exceptions of which this case is not one, it is reserved, broadly speaking, as Lawton LJ pointed out, for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act, yet who are in a mental state which makes them dangerous to the life and limb of members of the public. It is sometimes impossible to say when that danger will subside, and therefore an indeterminate sentence is required, so that a prisoner’s progress may be monitored by those who have him under their supervision in prison and so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large”.

It is therefore plain that evidence of an offender’s mental state is often highly relevant, but the crucial question is whether on all the facts it appears that an offender is likely to represent a serious danger to the public for an indeterminate time.”

54. In this case both appellants asked to be sentenced on 19^th July without the preparation of pre-sentence or other reports, but, whatever the reason for that, as we understand it there was no evidence before the court which suggested that Angela Sellars was likely to be a danger to the public for an indeterminate time. Her previous convictions are of a comparatively modest nature and restricted to the mid-1980s. Further, at the time of the offence she was living with her partner, the appellant Mason, and was, as Ms Moore puts it, living a chaotic life drinking vast quantities of alcohol. There was, however, no evidence before the judge of which we are aware that there was a risk of her being a danger to the public after being released from a long sentence. At the time of sentencing, while on remand she had been working in a trusted position as a librarian and was attending a counselling course in respect of her alcoholism. She was free from any dependence upon alcohol.
55. In these circumstances we have reached the conclusion that a sentence of life imprisonment was not and is not justified. We therefore quash that sentence and the recommendation which flowed from it and must substitute an appropriate determinate sentence for it. As already indicated, this was a very serious offence which led to the death of a man. Moreover, although Angela Sellars had few previous convictions, she did not plead guilty or show any remorse. In these circumstances, in the light of the authorities including Daddow, we have reached the conclusion that a sentence of 20 years imprisonment should be substituted for the sentence of life imprisonment passed by the judge. To that extent her appeal succeeds.

Conclusions

56. For the reasons we have given, Mason’s appeal is allowed to the extent that, although his sentences to life imprisonment on both counts remain, they are both to be treated as automatic life sentences passed under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. On both counts, under section 82A of that Act, we order that subsections 28(5) to (8) of the Crime Sentences Act 1997 apply to Mason as soon as he has served the relevant part of his sentence. We fix the relevant part of his sentence on count 1 at 10 years 55 days and on count 2 at 5 years 55 days, in each case from 19^th July 2001. It follows that he cannot require the Secretary of State to refer his case to the Parole Board under section 28(5) of the 1997 Act until he has served 10 years and 55 days from 19^th July 2001, which was the day on which he was sentenced by the judge.
57. The sentence of life imprisonment imposed on Angela Sellars is quashed and a determinate sentence of 20 years imprisonment is substituted for it.
58. We conclude by recognising that, long as they are, these sentences are somewhat shorter in duration than those envisaged by the trial judge who had the considerable advantage of presiding over the trial and hearing the evidence. The difference reflects the fact that the appellants were convicted of conspiracy to murder and not of murder. We repeat that we do not know why the appellants were not indicted for aiding and abetting murder, but the case does perhaps underline the importance of prosecuting authorities giving careful consideration to the way in which the charges are framed.
59. Finally, we observe that the case also demonstrates the importance of counsel giving every possible assistance to the judge in the sentencing process. The powers and duties of a judge in passing sentence seem to become more and more complex as time goes by. It is the duty of counsel to ensure that the judge is fully informed of what those powers and duties are. We should, however, add that both Mr Potts and Ms Moore discharged that duty on these appeals.