England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

		2011/05150/A8 (Eccles) 2011/05234/A2 (Abu-Neigh (formerly Wallace)) Royal Courts of Justice Strand, London, WC2A 2LL
		01/12/2011

The Lord Chief Justice of England and Wales:

Each member of the court has contributed to this judgment.

1. Technically, procedurally, these are otherwise unconnected applications for leave to appeal against sentence out of time. The appellants were convicted of murder and sentenced to life imprisonment. Minimum terms to reflect the appropriate level of sentence for punishment and detention were determined. They are now seeking reductions in the minimum term on the single ground that after serving several or more years of their sentences, they have made exceptional progress. The reality, therefore, is that the court is conducting a review of sentence by assessing the conduct of each appellant long after he was sentenced, rather than examining whether the sentence was manifestly excessive or wrong in principle. The Court of Appeal Criminal Division is not a court of review; it is a court of appeal. This jurisdiction therefore is unusual and we shall explain in due course how this surprising responsibility came about.
2. This jurisdiction is quite different to the ordinary processes relating to fresh information received on sentencing appeals brought within appropriate time limits. In such cases the court may sometimes consider post sentence information which may have a bearing on the order made in the Crown Court. This is of particular relevance where the offender is young and has, for example, responded positively to the sentence. This is part of the ordinary process of appeal. Where information of this kind is taken into account, it simply bears on the question whether the original sentence was wrong. However it may be described, that this is not a review of the kind envisaged here. It remains a straightforward appeal.
3. Abu-Neigh was convicted of murder in July 1998. The Secretary of State determined the minimum term to be served before any question of release could be considered, and that determination was reviewed under paragraph 3 of schedule 22 of the Criminal Justice Act 2003 (the 2003 Act) by a High Court Judge. Gill and Eccles were convicted in 2002. The minimum term was fixed by a High Court Judge under paragraph 6 of the same schedule, that is, without any previous determination by the Secretary of State. In the case of Abu-Neigh an extension of time of nearly 2½ years is required: in Eccles the necessary time extension is nearly 4½ years, and in Gill an extension of time of just over 2 years is required after refusal by the single judge of an application that itself was nearly 2 years old.
4. At a hearing on 16 June 2011 in the application of Gill, Sir Anthony May, President of the Queen's Bench Division, formulated a series of questions which were said to arise or which might arise. They can be summarised as follows:

(a) When the Court of Appeal is reviewing a mandatory life sentence on grounds of exceptional progress (as identified in re Caines [2007] 1 WLR 1109, is there a distinction between cases under paragraph 3 and paragraph 6 of schedule 22 of the Criminal Justice Act 2003?

(b) Would the same apply to a "modern" minimum term? That is, one passed after 18^th December 2003 by a trial judge following a murder trial as part of the first instance sentencing process?

(c) If the decision of Forbes J on 26^th January 2007 (specifying the minimum term of 15 years) was correct at the time it was made, is it open to the appellant to seek to renew the refused application for leave 4 years 2 months on?

(d) Would it be open to the Criminal Cases Review Commission to refer this matter back to the Court of Appeal if the full court were to refuse to grant an extension of time for the application to be renewed? Or is an appellant who makes an application too soon to be denied a further application?

The same broad questions are raised in all three applications.

5. The analysis begins with the applications made in February 2000 by Anthony Anderson and John Hope, prisoners who were serving mandatory sentences of life imprisonment for murder. They sought judicial review of the decisions of the Secretary of State for the Home Department made in November 1999 and March 2000 to fix the minimum period of imprisonment considered necessary to satisfy the requirements of retribution and deterrence, (formerly known as the tariff). Their claim made its way to the House of Lords, and at the end of 2002 their applications for judicial review were successful. The process by which the Secretary of State was involved in the assessment of the tariff, on occasions amending the period recommended by the judiciary, was incompatible with the right to a fair trial. He was a member of the executive. He was therefore neither independent of it, nor indeed a tribunal at all. It therefore followed that he should play no part in assessing the tariff. That was an exclusively judicial decision. (See R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837).
6. Pending the decision of the House of Lords a very large number of offenders convicted of murder had been waiting for their minimum terms to be determined. In effect the Secretary of State postponed the assessment of their tariffs until the conclusion of the litigation in Anderson. The legislative response to the decision in Anderson was the enactment of Schedule 22 of the 2003 Act which came into force in December 2003. At that time there were something like 700 convicted murderers to whom tariffs had not been notified by the Secretary of State.
7. Until the commencement of the 2003 Act, it was the consequence of section 29 of the Crime (Sentences) Act 1997, re-enacting earlier provisions, that every prisoner serving a mandatory life sentence since 1997 had spent a significant part of the sentence under a regime in which exceptional progress provided a recognised basis for a reduction in the minimum term. (See R v Caines [2007] 1 WLR 1109.) Further, at that time, release by the Secretary of State on exceptional compassionate grounds under section 30 of the 1997 Act also formed part of the statutory regime. In view of the issues which arise, we must set the provisions out in full.
8. Section 29 of the 1997 Act provided:

"(1) if recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not (a discretionary life prisoner)

(2) the Parole Board shall not make a recommendation under sub-section (1) above unless the Secretary of State has referred the particular case … to the Board for its advice".

9. This provision repeated in virtually identical terms, the provisions of sections 35(2) and (3) of the Criminal Justice Act 1991, itself very similar to section 61(1) of the Criminal Justice Act 1967. It formed the basis for acknowledging exceptional progress in prison. This was because, by virtue of section 29, the Secretary of State, with the involvement of the Parole Board, made the final determination of the period for which the convicted murderer should remain in prison for the purposes of retribution and deterrent. It was part of the scheme then in force for executive determination of the minimum term for those who received mandatory life sentences.
10. Section 30 of the 1997 Act provides:

"(1) the Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds".

11. The repeal of section 29 of the 1997 Act was almost certainly consequent on the declaration made in Anderson that it was incompatible with the Convention right to have sentences imposed by independent and impartial tribunals for the Home Secretary to be vested with responsibility to give effect to the provisions of section 29 when, prior to Anderson, he decided on the minimum term to be served by the mandatory life sentence prisoner. Consistently with the removal of the Secretary of State from involvement in the fixing of the tariff, by Schedule 37, Part 8, section 29 of the 1997 Act was repealed: section 30 was not.
12. Schedule 22 of the 2003 Act was enacted to manage the transition from the system by which the determination of the minimum term was made by the Secretary of State to the new arrangements which make this an exclusively judicial decision. Two classes of offenders were identified. Some were existing prisoners who had been notified of the minimum term by the Secretary of State. By paragraph 3 they were enabled to apply to the High Court in effect, to fix the minimum term. Others were existing prisoners who had not been notified by the Secretary of State of the minimum term. The Secretary of State was obliged to refer their cases to the High Court for decision. In short, the processes created by Schedule 22 took the form either of an application to the judge which the prisoner might choose to make, or a mandatory reference to him. The 700 hundred prisoners referred to earlier all fell within one or other category. The decisions were made by High Court Judges, and paragraph 14(1) created rights of appeal against their decisions, whether resulting from an application or a reference. Only a tiny number of these cases remain unresolved.
13. In R v Cole [2003] EWHC 1789 Admin, the Divisional Court presided over by Rose LJ, Vice-President of the CACD, addressed the issue of exceptional progress in prison in the context of the legislation which was subsequently enacted as the 2003 Act. He noted the evidence of the Head of the Tariff Section Life Unit that:

"8. Under the draft new legislation the High Court, when setting minimum terms, would be required to take a number of specified factors into account. The draft provisions do not require the High Court to take exceptional progress, or exceptional circumstances into account, and the Home Secretary never intended that the court should be obliged to do so. Rather, the draft legislation leaves it open to the courts to take into account exceptional circumstances, including exceptional progress in prison, in appropriate cases. It is currently proposed that this will be a matter for the courts, although of course the final form of the provisions is a matter for Parliament"

With this material, Rose LJ said that it seemed to him

"… inconceivable, in human terms that, if the legislation is enacted, as presently contemplated, in relation to prisoners serving a notified tariff, exceptional progress in prison will not be taken into account on the intended High Court review"

14. This approach was adopted in a series of cases after the legislation came into effect, and in due course it was followed in R v Caines; R v Roberts, cases where existing prisoners exercised their entitlement to apply to the High Court to consider the notified minimum term. Accordingly both were appellants whose cases fell within paragraph 3. It was concluded, in short, that exceptional progress while in custody may be taken into account when the minimum term fixed by the Secretary of State is revisited on an application by a prisoner under paragraph 3 of schedule 22.
15. The court recognised the illogicality and difficulties involved in re-examining

"the tariff fixed for the purpose of punishment and deterrence by reference to exceptional behaviour post-sentence, a hesitation reinforced by the absence of any direct or express indication to this effect in the carefully structured statutory guidance. Nevertheless, … our hesitation is alleviated. … R (Anderson) v Secretary of State for Home Department (2003) 1 AC 837 was not intended to produce any increase in sentence, nor deprive any prisoner deserving of a measure of clemency of that clemency, nor adversely to affect the tariff period. Its purpose was the removal of the involvement of the Secretary of State in the assessment of the minimum term. The provisions of the 2003 Act were intended to reflect the principles identified in Anderson's case, both for existing and future life prisoners. If it were not for the progress of Anderson's case through the courts, reductions for exceptional progress against the minimum term would have continued."

16. This approach to applications by prisoners under paragraph 3 of Schedule 22 was subsequently taken to apply also to references by a prisoner under paragraph 6. In Sampson [2006] EWCA Crim. 2669, this court presided over by Lord Phillips CJ acknowledged that the same principle applied to paragraph 6 references as it did to paragraph 3 applications.

"We consider that the appellant's exceptional progress in prison forms an important part of the overall circumstances, demonstrating as it does a complete change of personality … This underlines the significance of these factors as matters to be taken into account in mitigation".

17. The principle was applied in Julie Barker [2008] EWCA Crim. 2558, another paragraph 6 reference, where Latham LJ, Vice-President, observed:

"The appellant is in a privileged group. Those sentenced to life imprisonment since the new regime under the 2003 Act came into effect do not have the benefit of any structured process resetting their tariffs; and looking wider, no prisoner serving a determinate sentence, nor any indeterminate sentence under the 2003 Act has the opportunity of formal, judicial, reconsideration of their minimum term or tariff other than on appeal. Whilst it is right, for the reasons indicated by the court in Caines, but in particular what might be called the legitimate expectation argument, to reflect matters such as good progress … when setting the tariff in transitional cases, that should not produce a result which is unjust to other prisoners."

18. No further citation from the numerous authorities referred to in our papers is necessary. In summary, consequent upon the complications which arose while Anderson was making its way to its conclusion in the House of Lords, and the end of the system by which the Secretary of State finally determined the tariff period which was remedied in Schedule 22 of the 2003 Act, it has been established that the interests of justice require that for cases falling within Schedule 21, the High Court, or this Court on appeal, should consider and reflect on evidence of exceptional progress in prison and, where it is established, make due, but as we shall see, modest allowance for it against the minimum term. So far, so good.
19. Almost inevitably, defendants in cases of this seriousness are liable to remain in prison for long periods of years. The time for an appeal against sentence is 28 days. Any extension of time must be justified. Even if good, indeed exceptional, progress appears to have been made in the first few years that does not necessarily provide an accurate indication of how the prisoner will progress throughout the sentence. It is therefore unwise to conclude that progress to date will indeed continue until the end of the sentence. Some prisoners relapse, some cease to make progress and some who have made exceptional progress for a while, lapse into indifference. So a reduction in the minimum term to reflect exceptional progress should not realistically be considered until towards the end of the minimum period. This feature was accentuated by the general approach of the courts, following the former practice of the Home Secretary, that even where exceptional progress had been made, the tariff period should not be reduced by more than 2 years. The reasons are fully explained in Caines. In reality, therefore, an application made more than, say, 3 years before the end of the determinate period would be premature. That indeed was the conclusion reached by the judge in more than one of these appeals.
20. If therefore an application cannot realistically be made until close to the end of the minimum term, whether in paragraph 3 or paragraph 6 cases, it follows that the process should be delayed until it becomes realistic to seek to provide a measured answer to that question, inevitably, many years after the time for appeal had expired. By normal standards it would require an extraordinary extension of time when, in any circumstances other than the present, an application for such would almost invariably be bound to fail. At the same time, if it were refused, it would remain open to the appellant to refer the case for the consideration of the Criminal Cases Review Commission exercising its own jurisdiction, which might, in a meritorious case where the appellant was otherwise without remedy, might very well conclude that the case should be referred. If so the reference would by statute then be treated as an appeal which did not require any extension of time. All that seems unnecessarily complicated. Better by far for the court to face up to the practical realities and, on the basis of an appellate jurisdiction, in an appropriate case when the minimum term has been assessed in accordance with either paragraph 3 or paragraph 6 of Schedule 22 to conduct the necessary review. That is what we have done in these cases.
21. In our judgment this process is confined to cases which fall squarely within the provisions of paragraphs 3 and 6 of Schedule 22, that is the transitional provisions designed to apply to prisoners who began to serve their sentences while exceptional progress was acknowledged as a feature of the sentences which in appropriate cases permitted a reduction in the minimum term. That provision ceased to have effect with the repeal of section 29 of the 1997 Act and the implementation of Schedule 21 of the 2003 Act. There are, of course, and given the piecemeal way in which legislation in relation to sentencing is enacted and brought into force perhaps inevitably anomalies.
22. One was highlighted in R(Smith) v Secretary of State for the Home Department [2006] 1 AC 159 when the House of Lords in effect recognised the special position of those who because of youth had been sentenced following conviction for murder to detention during Her Majesty's Pleasure. This decision proceeded on the basis of an entirely distinct legislative framework appropriate to such young offenders. Neither the decision of the House of Lords nor the relevant legislation bears on the question currently under consideration.
23. After December 2003, the minimum term to be served for punishment and deterrence will have been set by the trial judge. Section 269 of the 2003 Act, together with Schedule 21, makes specific provision for the assessment of the starting point for the minimum term, and indeed makes them explicit. Thereafter the question may be considered in this court, either on appeal or in the context of a reference by the Attorney General. There is no legislative provision equivalent to section 29 of the 1997 Act. Consistently with the new legislative arrangements, provision for reduction of the minimum term by reference to exceptional progress in prison no longer applies, at any rate in the context of an appeal to this court against sentence. The only relevant provision is found in section 30 of the same Act, and involves the exercise of a judgment whether compassionate grounds for release exist. If they do, the exercise of the power to order release has nothing whatever to do with the correctness of the original sentence. It therefore forms no part of any appeal process.
24. In R v Bieber [2008] EWCA Crim 1601 the court considered the correctness of a whole life order imposed following conviction for murder in December 2004. The court reflected on the question whether the imposition of a whole life order contravened Article 3 of the European Convention of Human Rights. Lord Phillips CJ contrasted the pre-December 2003 regime with what he described as the "current" regime, where the power of the Secretary of State to release a life prisoner was limited to the powers found in section 30 of the 1997 Act. He observed that the practice of the Home Secretary involved the sparing use of this power, but he continued:

"If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, … the Secretary of State should not use his statutory power to release the prisoner".

25. He suggested that any challenge to the failure to use this statutory power could be broad enough in its ambit to include the progress made by the prisoner whilst serving the sentence. When Lord Phillips addressed the question of how this issue might arise for decision, he spoke in the context of a challenge under Article 3 (that, by way of judicial review) rather than an appeal to this court. In short, the reasoning proceeded on the basis that the legislative arrangements relating to minimum terms set under Schedule 21 of the 2003 Act did not leave it open to this court consider exceptional progress in the context of an appeal against sentence.
26. As Latham LJ observed in Barker, prisoners whose cases were governed by the transitional provisions were in a special category or "privileged group". Latham LJ concluded:

"Where a tariff has been set … that will not now be subject to review any more than will the period before early release in the case of determinate sentences. The only exception will be those sentenced to detention at Her Majesty's Pleasure."

27. In our judgment, in accordance with the reasoning in Bieber and the observations of the court in Barker, the repeal of section 29 of the 1997 Act, and the absence of any corresponding provision in the 2003 Act, lead to the conclusion that the exercise of what we have described in this judgment as the review jurisdiction of tariff on the basis of exceptional progress has no application to cases governed by what is sometimes described as the "modern", that is post December 2003 legislative structure. In effect, therefore, no residual discretion in the court to reduce the minimum term on the basis of "exceptional progress" survives. It was a temporary measure which applied to a formidable but "transitional" problem.
28. There are two further critical considerations. When considering the issue of exceptional progress, the court is not considering the correctness or otherwise of the sentences imposed at trial, or the tariff periods fixed by the relevant judge in the light of all the aggravating and mitigating circumstances of the individual offence. In short, the court is not revisiting the punitive and deterrent elements of the sentence, nor indeed the element of public protection, which is addressed by the sentence of life imprisonment. Equally, it is not addressing the issues which will fall to be resolved by the Parole Board at the end of the minimum term (whether it is reduced on the grounds of exceptional progress or not), nor is it intended that the court should express any opinion about the exercise by the Parole Board of its separate responsibilities.
29. This is a fact specific decision. It is not susceptible of decision by reference to facts in different cases which are sometimes described as authorities when they are no more than fact specific decisions. The guidance offered in Caines has been followed without difficulty in a number of subsequent decisions.

"Good behaviour is not enough to constitutes exceptional progress … the standard should be very high: The progress must be exceptional, outstanding and bearing in mind that it provides the basis for a reduction in a period fixed for the purpose of punishment and deterrence, so it should be. Even where the necessary high standard is reached, the impact on the total tariff period is likely to be very modest. The longest reduction so far has not exceeded 2 years, and in the significant majority of cases where exceptional progress has been established, reduction has been for 1 year."

30. These principles have been consistently applied. There is no reason to deviate from or amplify them.
31. One of the more difficult potential areas of difficulty is that there will inevitably be cases where the defendant appealed against the minimum term, shortly after the sentence was imposed, on the basis that it was manifestly excessive, and without reference to any progress in prison. Whether successful or not, the conclusion of the appeal disposes of any further right to appeal against sentence. If there is a case where exceptional progress genuinely arises for consideration neither the High Court nor this Court can create a further right of appeal against sentence which was not created by statute. Where the question of exceptional progress genuinely arises in the context of Schedule 22, but the normal appeal process has been exhausted, the case should be referred to the Criminal Cases Review Commission, which will decide in its turn whether or not to refer the case to this court. If so, then it would proceed as an appeal to this court without further reference to the High Court.
32. There could be further cases where the statutory appeal process on grounds independent of exceptional progress has not yet been exhausted. In these cases, assuming that any are now left, any application for a reduction in the minimum term on the basis of exceptional progress should be adjourned, with an indication about when it would be sensible for the court to reconsider it.
33. The brief answer to the questions posed by Sir Anthony May are:

(a) for the purposes of the Review, of a mandatory life sentence on the grounds of exceptional progress, there is no effective distinction between cases under paragraph 3 and paragraph 6 of Schedule 22 of the 2003 Act.

(b) Possible reductions for exceptional progress in prison do not form part of any appeal process for sentences imposed after 18 December 2003.

(c) In this case the appellant Gill will be granted leave to seek to renew his application. Because of the issues raised in argument, each applicant will be granted extensions of time and later leave to appeal, and hereafter will be referred to as the appellant.

(d) The jurisdiction of the Criminal Cases Review Commission will continue to be exercised in accordance with its statutory functions, in the light of the observations in this judgment.

34. We shall now examine the individual cases.

Mr Justice Henriques

35. Nimal Singh Gill is now 47 years old. On the 9^th January 2002 at the Crown Court at Wolverhampton he was convicted of murder and sentenced to life imprisonment. The trial Judge reported to the Home Secretary the minimum term to be served before the appellant was eligible for release should be set at 15 years. The Lord Chief Justice agreed. The appellant's case was referred to the High Court for the minimum term to be set pursuant to Section 276 and para 6 of Schedule 22 Criminal Justice Act 2003. On the 26^th January 2007 Forbes J specified that the minimum term should be 15 years.
36. We briefly summarise the facts giving rise to his conviction. The deceased was the appellant's 55 year old male cousin. He was severely beaten, probably to the point of unconsciousness, and then bound tightly with adhesive tape which covered his mouth and nose. His body was then wrapped in a blanket and chain. Weights were added and the body was put in the canal. He suffered death by asphyxia. The canal was not deep enough for the body to submerge completely and was seen the following morning by a man walking his dog. The appellant's fingerprints were found on the adhesive side of the adhesive tape. He asserted in interview that he was elsewhere at the time of the killing. He pleaded not guilty and was convicted of murder.
37. The minimum term was set at 15 years, the appellant subsequently questioned whether account should have been taken of the progress that he had made in prison. He was advised that he would be unable to demonstrate exceptional circumstances until he had spent a significant period in category C conditions. In August 2007 the appellant was transferred to H.M.P Wolds a category C prison and in April 2008 an acting Life Manager at H.M.P Wolds described his behaviour as 'exemplary' and praised his achievements as a listener and cited his educational qualifications gained. Evidence was obtained that he had been a model prisoner at H.M.P Gartree and continued to be such at H.M.P. Wolds. On the 12^th February 2008 Tomlinson J (as he then was) heard applications for an extension of time, leave to appeal against the minimum term and for legal assistance. All these applications were refused for the following reasons.

"I have considered the papers in your case and your grounds of appeal. The appellant is to be commended for using his time in prison constructively and to good effect, but this application is plainly premature."

38. Subsequently the appellant was advised that he should not renew his application before the Full Court but should make a further application perhaps in 2011 or following his Parole Board review in 2013. On the 18^th May 2011 a renewed application for an extension of time was lodged and accordingly we have considered this application.
39. It is submitted that the appellant has had an exemplary work and disciplinary record in prison. We have read impressive letters from Barbara Jones Life Manager at H.M.P. Wolds dated 1^st October 2010 and from the Director of H.M.P. Wolds, Dave McDonell dated 10^th January 2011. At H.M.P.Gartree he maintained an excellent behaviour record, was considered by his personal officer to be a model prisoner, made use of all the facilities including education, was employed as a class room assistant, was offered a red band post (a position of trust), was on the enhanced privilege regime, had no adjudications or warnings and produced 56 negative drug samples. At H.M.P Wolds he maintained an excellent behaviour record and complied with his sentence plan. He is on the Premium Level of the Incentives and Earned privileges Scheme. He continues to be warnings and adjudications free. He worked in the prison on line marketing business 'Summit Media'. He signed a voluntary drug testing compact and has had no negative results. He has been employed in the Resettlement Department as a Resettlement Assistant. The officer in charge described him as worthy ambassador for the Resettlement Team in any task he undertakes. His progress throughout the sentence was described as exceptional. He had written some 60 resettlement plans for disadvantaged prisoners taking him approximately 10 hours for each plan. He has received much praise for his work, not least from persons outside prison.
40. In addition to his excellent work and disciplinary record in prison we have been told of the good works he has done for the benefit of others over and above resettlement work. At H.M.P. Gartree he was a wing representative and member of the race relations committee. He was a Class Room Assistant on the BTEC Diploma Course and spent many hours encouraging and assisting prisoners with their written and practical work, particularly those who struggled. At H.M.P. Wolds he engaged himself in a variety of activities and organised events to help others. He worked in the Children and family Resource Centre and was involved with Family Learning Days. He created books for children with sight deficiencies and obtained glowing references form that centre. He continued helping disadvantaged prisoners with resettlement plans and writing letters, was described as a good role model to other offenders, has been a Prison Listener since 2002 with a fine reference from the Chaplain. He has helped organise the Wolds Inmate Support Team and sits on various committees representing less able prisoners. He has raised over £9000 for various charities including Victim Support and has lectured to children on the dangers of prison. He has on many occasions assisted in the control of an offender who suffers violent epileptic fits. He was the Race Relations Representative for his unit and the Black Minority ethnic Co-ordinator. He started a music library and was involved in a film project. His impact has been described as extremely valuable. He has organised guitar classes for prisoners and participates in concerts. He is involved with the Black History Committee. He offered to be a bone marrow donor.
41. We conclude this aspect of our judgment by reciting the following passages from letters before us

"I consider that he has made exceptional progress during his sentence and can see him continuing this outstanding progress throughout the most of his sentence. I would class him as a model prisoner, which others should aspire to."

PCO Gemma Andrews Personal Officer 15th July 2010.

"Based on my knowledge of your client which has been taken from all available reports, prison records and prison contact, I would consider that Mr Gill has made exceptional progress imnprison."

Barbara Jones Life Manager H.M.P. Wolds.

"In my opinion his progress throughout his sentence can only be described as exceptional."

Kevin Hunter – Resettlement Officer

42. We further note also that the appellant has participated in extensive educational activities having been awarded a BSc Honours Degree at the Open University and numerous certificates including Electrical Engineering, Rail track Engineering, Forklift & Truck Licence, NVQ Customer Services, and Football Training. His many achievements are set out in a document before us headed Personal Information. They number by way of work, education, charity and voluntary activities some 79 in all and are supported by 24 references.
43. On the 24^th August 2007 the appellant was transferred to category C conditions at H.M.P. Wold the Ministry of Justice notifying him that it was due to the good progress made and his first Parole Board review has been advanced by six months. His OASYS risk assessment has been steadily reduced and is currently 6 points, an extremely low score. Whilst he continues to maintain his innocence the only pending application is the present one. He undertook two Victim Awareness programmes in 2008. As was said in Caines and Roberts 2007 1WLR 1109 at paragraph 17

"He continues to deny that he was guilty of murder. That, however, does not prelude the finding that he has made exceptional progress. Credit should be given where it is due, and the refusal to admit guilt is not a necessary prerequisite to the conclusion that the progress of the prisoner has been exceptional."

44. We agree that the appellant's progress has been exceptional and merits some reduction in his minimum term. In argument Mr Taylor contended for a two year reduction – the equivalent of a four year determinate prison sentence. Such reduction may be more appropriate in cases where a minimum term of greater length than the present has been fixed, and where the prisoner has progressed in the manner and to a degree which the sentencer could never have anticipated. Sometimes, exceptionally, an offender many years later and by singular effort is barely recognisable as the individual sentenced many years before. Prior to sentence, the appellant was a successful and hard working business man and a man of good character. We have concluded that he has made exceptional progress and accordingly grant the applications to extend time and for leave to appeal the minimum term. We have treated this application as the hearing of the appeal and accordingly reduce the minimum term of 15 years to one of 14 years.
45. Richard James Eccles is now 47 years old. On 27^th September 2002 in the Central Criminal Court the appellant was convicted after trial of murder and sentenced to Life Imprisonment. On the morning of 10^th of March 2002 the deceased, his brother and the appellant went to a public house. They drank and the appellant also took cocaine. That afternoon an argument broke out between the appellant and the deceased where after the deceased punched the appellant to the mouth. The appellant left the public house and returned with a knife and after another brief argument with the deceased the appellant stabbed him once in the stomach with the knife killing him. The trial Judge reported to the Home Secretary that the minimum term to be served before the appellant was eligible for release should be set at 12 years. The Lord Chief Justice made no recommendation. No minimum term was set by the Home Secretary. He has 9 previous court appearances between June 1979 and July 1999 for theft, criminal damage, burglary and theft (dwelling), assault occasioning actual bodily harm, breach of community service order, grievous bodily harm with intent, driving a conveyance taken without authority, failing to surrender, common assault, affray and driving with excess alcohol. He has committed 7 offences against the person. We include these in our judgment in order to evaluate the risk assessment and understand it and also with a view to assessing the progress the appellant has made. The appellant's case was referred to the High Court for the minimum term to be set pursuant to Section 276 and para 6 of Schedule 22 Criminal Justice Act 2003. On 23^rd March 2007 Langstaff J specified that the minimum term should be 12 years imprisonment less 5 months and 20 days spent on remand.
46. In fixing that minimum term Langstaff J said this:

"I have accordingly taken the view that the progress in prison is relevant, but that I should adopt a restrictive approach to the extent, to which, if at all, it is such as to justify a reduction in effective sentence which is that which a minimum term constitutes."

"From Life Sentence Progress reports it appears that the defendant's conduct at HMP Swaleside has been exemplary, and has been spent constructively. He is a peer tutor in the education department and in the gymnasium, helping with special needs children who use the facilities weekly. He has achieved Key Skills accreditation at level 3 in English, and undergoing distance learning. I have seen several certificates of educational achievement, especially in numeracy and literacy, but also social and life skills, weight training, sports leadership, and health and safety."

"The seconded probation officer's report of September 2003 indicates significant remorse for what occurred. "He has received no adjudications whilst an inmate of Swaleside"."

"The record that I have relates to one prison. This record deserves commendation. However it does not in my judgment cross the threshold I have identified as set in Cole. I have little doubt, however, that if it is sustained it will be reflected when the defendant applies for early release in due course after serving the minimum I shall set."

47. In setting the minimum term at 12 years Langstaff J took the starting point as being 15 years (in accordance with paragraph 6 of schedule 21 CJA 2003). There were no aggravating factors within the scope of the schedule; there were a number of significant mitigating factors. They would reduce the sentence to one of no more than 12 years: in particular the element of provocation which albeit short of a defence to act in a manner apparently out of character. He noted the trial judge's recommendation of 12 years. He concluded that the term which would have been adopted under the practice of the Home Secretary at the relevant time was one of 11-12 years. Accordingly, 12 years was within, though at the top of, the range which the Secretary of State would at the relevant time probably have adopted.
48. The appellant has served his sentence at H.M.P. Swaleside from 2002-2004, H.M.P. Maidstone from 2004-2009, and H.M.P. Swaleside from 2009 to date.
49. We have read references which make the following observations:

PO Avis:

"His conduct (working in the gym) can only be described as exemplary…..he has used his time constructively and actively."

PEPO Lyttle:

"He sets himself high standards and constantly achieves them. He works well within the gymnasium environment, helping both staff and peers alike. He is and continues to be an asset in the gymnasium."

PESO Beatson

"He is highly organised and dedicated…. He is respected throughout the establishment by both staff and peers."

PESO Kerry

"I would give him reference to any time as he has helped my department immensely during his time here."

Nigel Hayward

"He has been extremely motivated to study and gain knowledge and experience in the Health and Fitness industry whilst in custody….. His behaviour has been exemplary. He is punctual, polite, and courteous and has built good relationships with all he had worked with in the gymnasium."

He always produced negative drug tests.

50. On the 22^nd August 2011 the appellant was notified that he was to be transferred to open conditions exceptionally without the usual practice of consulting the Parole Board.
51. He has prepared and delivered courses on nutrition. He was the first prisoner at H.M.P. Swaleside to qualify as an NVQ assessor. He was chosen to assist children at a special needs school. He ran 'Dads Pack Days' a scheme enabling prisoners to interact with their families, particularly their children. At H.M.P Maidstone he implemented and designed a newsletter for staff and prisoners. In 2008 he was awarded the High Sheriff's commendation for 'showing inspiration and selflessness.' As the nomination stated he single handed started and gave a Basic Key Skills package to prisoners. He also facilitated a course for prisoners needing to reduce drug taking offending. His nomination was supported by the Prison Governor and he was described as 'both courteous and polite to all staff and prisoners and is one of our Decency Champions.' He has supported prisoners on the smoking cessation programme. In the gymnasium he has assisted in the delivery of numerous vocational qualifications as well as developing and implementing schemes of work and delivery schedules. He is a violence reduction officer on his wing and is said to have performed this role to a very high standard. He is on 'enhanced' regime under the IEP (Incentives and Earned Privileges) Scheme.
52. In June 2011 he completed year 2 of a four year degree from the Open University in Sport Fitness and Health and is particularly interested in the managerial skills included as topics within this degree. He has undertaken several offence related courses on enhanced thinking skills, relapse prevention, victim awareness, alcohol awareness and Carats. On the enhanced thinking skills course it was said he worked hard to address all of his deficits in all areas of self – management, ability to develop alternatives and impulsivity.
53. He has received three adjudications in years 2002, 2005, and 2009 – the first for disobeying a lawful order, the second two for possessing an unauthorised item namely mobile phones. It may be that all 3 adjudications related to the use of mobile phones. The most recent of these was mitigated by the fact that his daughter was ill at the time.
54. In May 2010 the appellant became involved in a verbal argument with a prison officer on a football pitch. It did not result in an adjudication merely a 'negative entry.' He requested to be re assessed for CALM due to this negative entry. He had been assessed as unsuitable due to his poor recall of his earlier offences. He referred himself for counselling and found the sessions helpful to understand his offending and received positive feedback.
55. This places the appellant in the High Risk category concerning potential harm to the public and low risk of harm to staff in the custodial setting. The probability of reoffending or that is the risk of reconviction within 24 months is said to be 42% low. It is manifest that the high risk assessment is attributable to a combination of the murder offence and the antecedent history. We note that the appellant now takes responsibility for his behaviour and has developed his victim empathy.

Conclusion

56. This appellant has performed extremely well throughout his sentence and we have noted in particular Gary Lyttle's observation that he has made exceptional progress compared with other lifers. He has worked extremely hard to reduce his risk and has assisted the PE team to become high performing departments.
57. Not withstanding the excellent work, educational attainment and contribution to the life of others we cannot conclude having regard to adjudications and matters generally that this was exceptional and outstanding conduct meriting a reduction in the minimum term. In any event the unfavourable risk assessment effectively preclude us from concluding that in the context of the crime of murder, that exceptional progress in the context of violent crime has been made. Accordingly this appeal must be dismissed.

The Hon Mr Justice Irwin:

58. Abu-Neigh: On 1 July 1998 at the Central Criminal Court the Appellant was convicted of murder and was sentenced to life imprisonment by HHJ Gordon QC.
59. On the evening of 3 June 1997, the Appellant hired a mini cab and had himself driven to a number of locations, the last of which was a West Indian take-away café in Brixton. Once there, he got out of the mini cab and entered the rear of the premises through an open door into the kitchen of the café. There were 4 people in the kitchen and the Appellant held a gun to the head of one of them, placing his other arm around the man's neck, and demanded money and jewellery. Anthony Baker, who was known to the Appellant, was working in the café that night. He picked up a large cooking pot lid to use as a shield and went towards the Appellant. There was a brief struggle between the two men before the Appellant shot Baker twice in the head. The Appellant ran off. Mr Baker was taken to hospital but died later that evening. He had two gunshot wounds to the head, one bullet entering his forehead just above his left eyebrow and the other piercing his neck below his lower jaw. On 27 June the Appellant was arrested. He gave an interview in which he denied being the robber but gave no details as to the events of the evening.
60. The Appellant had no relevant previous convictions at the time of his trial.
61. On 6 July 1998 the trial judge completed his report to the Home Secretary. He made the following comments:

"The Defendant has no relevant previous convictions. There was some suggestion by the defence during the trial that the killing (by someone else) was related to drug dealing from the café rather than opportunistic robbery, but there was no evidence to support this. The possession of a loaded automatic pistol and firing of a second shot must indicate that the defendant is, at present, very dangerous."

62. The trial judge went on to recommend that an actual length of detention of 16 years was necessary to meet the requirements of retribution and deterrence.
63. On 9 July 1998 Lord Bingham CJ made his comment on the report as follows:

"I can consider that a term of 17-18 years would be appropriate in this case."

64. On 29 January 2001 the Home Secretary wrote to the Appellant setting the tariff of the period to be served before release at 20 years. The Secretary of State considered that a tariff of 17 or 18 years was insufficient to satisfy the requirements of retribution and deterrence.
65. The appellant is a prisoner falling within paragraph 3 of Schedule 22 of the Criminal Justice Act 2003. As such the Appellant sought to bring his case before the Court pursuant to Schedule 22 for the determination of a minimum term following the decision in Anderson. The application was dealt with by Mr Justice Beatson in a judgment dated 25 March 2009, [EWHC] 581(QB). The judge summarised the material available to him as to the progress of the Appellant in paragraphs 6, 16 and 17 of his decision. The relevant passages in the judgment are as follows:

"6. In representations on behalf of the appellant the court is asked to consider the appellant's custodial behaviour which is said to be excellent and, specifically his progress made whilst in prison, particularly in the form of the educational and charity work that he has undertaken. Reliance is placed on inter alia his work as a peer tutor and his teaching position within HMP Dovegate, the significant work he has done raising money for charity, his completion of an Open University BSc Honours degree in International Studies, and a City and Guilds qualification in fashion and adult teaching, and his completion of conflict management, social life skills, enhanced thinking skills and personal development, and anger management and drug relapse prevention course. Reliance is also placed on the award he has received from the Hardman Trust Scheme acknowledging his special commitment to the process of personal rehabilitation and a letter dated 29 October 2007 from the Director of HMP Dovegate recording the gratitude and thanks of prison staff for the appellant's intervention when a fellow life sentence prisoner was attempting to taken his own life.

………………

16. It is against this background that the representations made on behalf of the appellant in this case must be assessed. I have referred to the matters upon which the appellant relies. As well as his success in a number of offender related courses, he has taken numerous educational courses, most recently completing a BSc Honours degree in International Studies. He has numerous Koestler Awards, and in Kingston prison was one of a group of lifers who gave PE lessons to children with special needs. He has been awarded a certificate as a community sports leader. In HMP Dovegate he has received a gold band learning support assistant certificate and is regarded as an essential worker with a high level of commitment to his fellow prisoners. Early in his sentence he received a Hardman Trust Award (a scheme supported by Lord Woolf Chief Justice) for his special commitment to the process of personal rehabilitation. In October 2007 he received a commendation from the Director of HMP Dovegate for what was described as his selfless contribution to the safeguarding of another prisoner who was attempting to take his own life. The letter of commendation describes the appellant's response to an unforeseen incident as brave and a credit to him. The Director expresses his gratitude and admiration for the appellant.

17. Taking all these matters into account, in my view the appellant's progress in his sentence so far can be described as exceptional…"

66. In the case of this appellant, the court has been presented with essentially no additional information in relation to the Appellant's progress before the matter came before the judge who reviewed the tariff. Counsel was able to expand somewhat on the detail of the episode in 2007 where the Appellant intervened in a suicide. We are informed the relevant prisoner was hanging himself. The Appellant wrestled with him and held him up taking his body weight until prisoner officers could intervene. The man survived and thus the Appellant directly saved his life.
67. The first proposition advanced by counsel on behalf of the Appellant is that Mr Justice Beatson made a finding that the Appellant's progress was exceptional and that "the Appellant is entitled to the benefit of this finding". However Mr Field submitted that he had not had the benefit. Before proceeding to review his subsequent progress we address that submission.
68. In the remaining part of paragraph 17 of his judgment, Mr Justice Beatson considered the recommendation of this court in Caines and Roberts that progress should be considered when the minimum period is coming towards its end. He went on to say:

"Since the appellant is over half way through the 20 year period set by the Home Secretary the indication from Caines and Roberts is that it is not appropriate for a reduction to be made on the ground of progress at the present time. I observe, however, that this means that in the case of a prisoner, the issue will depend on when his case comes before a judge to determine the minimum period….. In the particular circumstances of this case, however, I have reflected the progress to date in the way I explain in the next paragraph."

69. Mr Justice Beatson went on to conclude that the appropriate approach was to take the Appellant's:

"…progress into account in deciding as between the two periods referred to by the Lord Chief Justice."

Thus his minimum period was set at 17 rather than 18 years. In our judgment this was a very considerable benefit to this Appellant, particularly in the context where the Home Secretary had set a minimum tariff period of 20 years. It is of course to be noted that, were this Appellant to be sentenced today, then by reason of Schedule 21 to the Criminal Justice Act 2003 the starting point to his sentence would be 30 years before point of release.

70. The appellant's progress prior the decision of Mr Justice Beatson was not flawless. He had 12 proven adjudications recorded against him, mainly for the possession of unauthorised articles, but including one proven adjudication for substance misuse in March 2004. He also had an adjudication in 2006 for disobeying a lawful order. He has remained "adjudication free" since 2006.
71. The appellant has continued intensive education work, competing study to the level of 3 IET and hopes to work further towards a master's degree. He has completed his only outstanding behaviour programme target with the end of his CALM (Controlling Anger and Learning to Managing It) course. The relevant governor's report from HMP Swaleside confirms that he has matured greatly since being transferred to that prison. His attitudes and behaviour are said to have been very positive and he is evidently motivated to address the underlying factors leading to his offending and connected to his risk of re-offending. He has completed all of the objectives set on his sentence plan and has continued to be a model prisoner.
72. There is a very positive reference for this Appellant from Imam Suhel Mulla, the Muslim Chaplain for HMP Swaleside, who confirms the Appellant's enthusiastic and positive engagement with his faith, his active fundraising for disaster appeals and his general good behaviour.
73. It is accepted that this Appellant is likely to be deported to his native Jamaica upon his release from prison.
74. This court accepts the picture of the Appellant's progress as set out by Mr Justice Beatson and we accept this Appellant has maintained his good behaviour and his general progress as a prisoner. However, we have reached the view that his progress since 2009 has really added little to that which was recognised by the judge in the course of his finding. The Appellant has maintained a very good standard of conduct but has not added to his positive record in any particularly marked way. For that reason, and reflecting the degree to which this Appellant has already benefited from the recognition of his progress in the decision of Mr Justice Beatson, we decline to make any further alteration to the minimum term. This appeal must be dismissed.