England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		11th December 2007

1. LORD JUSTICE THOMAS: On 17th July 1987 in the Crown Court at Birmingham before Mars Jones J, the appellant was convicted of conspiracy to wound and a conspiracy to murder. On 29th October in the same year, at the Central Criminal Court, the appellant was convicted of a count of attempted murder, a count of murder and a count of conspiracy to murder. He was sentenced on 30th October 1987 to life imprisonment.
2. The facts can be briefly summarised. On 10th October 1985 the appellant and another man entered a shop at a service station in Derby where the victim, Sucha Singh Atwal, was the co-proprietor. The appellant was carrying a .45 loaded Webley revolver which he fired at the victim at a range of about five to six feet narrowly missing him.
3. The next victim was Sangtar Singh Sandhu who was a Sikh and a well-known supporter of the late Rajiv Ghandhi. At about 5.00 pm on 16th January 1986 he arrived home with a friend. He reversed his car into the driveway of his home as he switched off the ignition he was shot with a shotgun, from very close range, to the offside window of the car by the appellant. He sustained serious head injuries and lost the sight of his right eye.
4. The third victim was Tarsem Singh Toor, who was a shopkeeper. He was prominent in politics and associated with Sandhu. At about 9.55 on 24th January 1986 he and his assistant were alone in the shop when the appellant entered the premises. He spoke to the assistant who turned away and then produced a gun. He fired at Toor who sustained terrible injuries to his head and died within an hour of his admission to hospital.
5. The appellant had been hired by Sikh extremist terrorists to commit these offences and was paid £6,000 for the offences. The final count to which we have referred related to a conspiracy to murder a person unknown.
6. The Lord Chief Justice and the trial judge considered the minimum term and recommended a minimum term of 30 years.
7. In 1994 the then Home Secretary wrote to the appellant to tell him that the Home Secretary had set the tariff at 30 years, but said he was willing to accept written representations as to the period to be served in accordance with the statement that had been made to the House of Commons in July 1993. Representations were made which included the provision of a psychiatric report. On 6th July 2001 a revised tariff was set at 25 years. No reduction was made on the grounds of exceptional progress. As was the custom at the time, no reasons were given for the decision of the then Home Secretary.
8. With the passing of the Criminal Justice Act 2003, those who had been sentenced by the executive to a minimum term, in those circumstances, became entitled to a review by the judiciary of that term. The appellant sought a review in accordance with section 276 and paragraph 3 of Schedule 22 of the Criminal Justice Act 2003. The matter was referred to Wilkie J. Submissions were made that the tariff term should be reduced to 20 years. In a judgment given on 21st July 2007, Wilkie J concluded:

"Applying the provisions of schedule 21 of the 2003 Act there is no doubt that the appropriate minimum term for this offender would have been significantly above 30 years. The multiplicity of the attacks, the highly organised nature of its commission and the political motivation each served to push the minimum term beyond the starting point of 30 years for someone who killed for gain. The Secretary of State was undoubtedly right in reducing his tariff from 30 years to 25 years to reflect the discrepancy in the seriousness of the involvement in these offences between, respectively, the offender and Basra but, in my judgment, the Secretary of State was correct in declining to consider that the progress made whilst in prison to be sufficiently exceptional to reduce further the tariff. There is nothing in the current representations which causes me to differ from that view. The offender's progress during sentence can be taken into account when the decision is taken whether, and if so when, to release him on licence at the end of the minimum term.

I am obliged to have regard to the time spent in custody on remand awaiting trial which in this case was 12 months and 12 days. As I have indicated, the term notified by the Secretary of State is significantly less than the minimum term which now would be fixed under Schedule 21 of the 2003 Act even taking that period fully into account. I can see no reason to reduce that term still further to reflect that fact. Therefore the minimum term which I set is 25 years."

9. It is against the decision that time on remand should not count, as set out in the last paragraph of the judgment, that the appellant appeals with the leave of the Single Judge.
10. The provisions of Schedule 22 to the Criminal Justice Act provide by paragraph 3(1), that on the application of an existing prisoner [which the appellant was] "the High Court must in relation to the mandatory life sentence order the early release provisions [under s.28(5)-(8) of the Crime (Sentences) Act 1997] apply to him as soon as he has served that part of the sentence which is specified in the order, which in a case falling in paragraph 2(a) must not be greater than the notified minimum term".
11. The judge is also obliged to have regard to the matters set out in paragraph 4, the seriousness of the offence and other matters.
12. The short point made by Mr Gledhill, on behalf of the appellant in this case, is that it was wrong of the judge to have increased the minimum term that had been notified to the appellant by in effect ordering that the time spent on remand should not count; this was contrary to the provisions of paragraph 3(1) which we have set out.
13. To examine the correctness of that submission it has been necessary to investigate and receive evidence in relation to the practice of the then Home Office, now the Ministry of Justice, in relation to the fixing of tariffs at the relevant time, that is to say back in 1987.
14. From what we have been told has been a diligent search made by the Ministry of Justice officials who now have charge of this matter, the officials are satisfied that, generally, at the time tariffs were fixed in 1987, time on remand was taken into account and the tariff ran from the date on which the offender was remanded into custody. If that is right, then to provide now that a prisoner should serve the tariff without taking into account the time on remand would be to increase the minimum term, which is not permitted by the provisions of paragraph 3.
15. There is, however, one difficulty that has emerged. It appears that the appellant was remanded into custody on 16th October 1986. Whilst on remand he was convicted of another offence on 17th July 1987. He was then a serving prisoner until he was sentenced on 30th October 1987.
16. If one looks at the whole of the period on which he was on remand, that amounts to a period of 377 days. But if one deducts the period whilst on remand, though when he was a serving prisoner, the period is 273 days. It is unfortunate that the practice of the then Home Office is somewhat obscure in relation to this. Through the diligence of Mr Gledhill, to whom we are greatly indebted for the help he has given us, he had discovered (without the assistance of the Ministry of Justice) a provision in the relevant departmental Lifer Manual which stated as follows:

"Tariff for convicted serving prisoner

A prisoner charged with a further offence will continue to serve the original sentence whilst awaiting trial for the new offence and is therefore not on remand. In such cases the tariff life sentence imposed must be calculated as follows:

• it will run from the date of conviction for which the life sentence is awarded;

• in cases where a determinate sentence prisoner reaches his or her release date before being sentenced for the new offence, and remains on remand for that offence, the tariff will be calculated from the first day of remand, ie the release date for the determinate sentence.

These arrangements apply to the calculation of tariff in both mandatory and discretionary cases."

17. It is not as clear a provision as one would like, but it does appear to be the practice that, at the relevant time, the period that a prisoner would have spent in prison when convicted for another offence and not on remand for the offence for which the tariff was set, did not have the period counted during which he was serving time as a convicted prisoner. Thus, in the present case, were it not for a matter to which we will shortly refer, the position would be that the time that was to run as if 273 days had been served and not the full 377. Nonetheless, it is clear that on 14 February 2007 a letter was sent by NOMS, on behalf of the Home Office to the appellant, telling him that his release date was 16 October 2011; as he was remanded into custody on 16 October 1986, this signified the 25 year period had been calculated from 16th October 1986, with no deductions for the period during which he was a serving prisoner.
18. Bearing in mind the obscurity of the term of the paragraph we have set out from the Lifer Manual, but more particularly giving effect to the notification (even though informal) of the position to the appellant, sent to him on 14 February 2007, it seems to us that, in the particular circumstances, the judge could not have increased the length of the sentence by directing the whole of the time on remand was not to count.
19. If diligent work had been done by those at the Ministry of Justice, then the letter of 14 February 2007 would not have been written in terms in which it was, but it was. It seems to us, bearing in mind the provisions of the statute and also being fair to this appellant, Wilkie J was not entitled to decide as he did in paragraph 15 of his judgment that the time spent on remand was not to count.
20. We would merely observe that in the future it is imperative that those at the Ministry of Justice take the time and trouble to ensure that there is a proper note on the file in these old cases explaining the practice to the judge and also producing to him any relevant and material correspondence. It is obviously important in the public interest that where these reviews are carried out, the information before the learned judge is as full as is possible.
21. We are particularly grateful to Mr Gledhill for the work he has done on this case and to the assistance we have had today from Mr Counsell in relation to these historic matters. We hope the decision we have reached will clarify the matter for the future and also be fair to this appellant.