QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|A DECISION UPON AN APPLICATION UNDER PARAGRAPH 3 OF SCHEDULE|
|22 TO THE CRIMINAL JUSTICE ACT 2003|
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Mr Justice Stanley Burnton:
In June, 1988, the defendant's sister, Sharifan Bibi (born 22 December 1969), who had been brought up in England, entered into an arranged marriage (her second) in Pakistan. In August she returned alone while the formalities for her husband's admission to this country continued. She here met Hashmat Ali (aged 44) and began an association with him in about November 1988. By late November she was living with him in his house in Huddersfield. At about the beginning of December her father persuaded her to return to the family home which was nearby. She remained there for a day or two, but went back again to co-habit with Hashmat Ali. She disappeared some time after 1400 on 19 December 1988: Hashmat Ali disappeared between 2200 on that day and 0130 the next. The likelihood is that she was enticed away from the house during the afternoon or evening of that day, and that he was ambushed on his return home that night. No bodies were found, but there was strong circumstantial evidence of decomposing flesh having been buried in a house owned by the defendant Haq in about August 1989, and of the 'grave' being re-excavated by Haq (and another brother, Abdul Hakim) in November when its contents were probably burned. All that the Police found in the 'grave' was one fingernail, probably female, shed by decomposition. Neither defendant gave evidence.
The murders were almost certainly directed by the father of the family, one Mumtaz Ahmed, but the evidence did not establish how, when or where they took place.
A covert recording was made of a conversation between the defendant Saleem and his wife while he was on remand (it was adduced in evidence). In it she told him that she had found out that Haq's wife had telephoned Sharifan to invite her to the family home: Haq had then asked her to go to the cellar where "three or four hands gripped her neck". Mumtaz Ahmed, she said, was watching at the head of the stairs. "You (Saleem) brought the van, you helped putting it in the black bags, after cutting it in pieces you all put them in." This manner of disposal would accord with the evidence adduced.
The defendant Haq was the only brother then living at home: he lied about his sister's disappearance and his co-defendant's whereabouts. He was responsible for the digging of the grave and its subsequent emptying when its contents became too offensive. He was at the centre of the plan, presumably under Mumtaz Ahmed's direction.
The defendant Saleem had made various admissions while on a visit to Pakistan in early 1989 that "we" had killed the two. He had also threatened his wife, saying: "If we can kill our sister we can kill you." He admitted to a younger brother (who was in Pakistan at the relevant time and who appeared to be a reliable witness) that he had only played a "small part", and was in Liverpool when the killings were done: he never said what the small part was. The likelihood is that he was involved in the initial disposal of the bodies, and then in taking Hashmat Ali's car to Heathrow, where its discovery would suggest a departure abroad.
The comments of the trial judge on the case and his and the Lord Chief Justice's recommendations of his tariff
These were killings to revenge the "shame" and "insult" to her family of Sharifan Bibi's adultery. Both defendants had convictions for USI and indecent assault: Mohammed Saleem had regularly been unfaithful to his wife, and neither defendant was seemingly a strict Muslim. The case appeared to depend on the father's right to take his daughter's life if she offended against the family honour. A different rule would appear to apply to a man's behaviour. It is not clear whether Hashmat Ali was killed because he deserved to share her punishment or to silence him. In either case both murders were carefully planned.
Although it was claimed that the traditional punishment of stoning belongs to the "Dark Ages", it seems that murder is not uncommon in Pakistan when a family is so dishonoured, and by no means unknown in the Muslim community in Yorkshire.
But those circumstances are unlikely to repeat themselves in these defendants' case. (The defendant Saleem is said to have said that if he was convicted of the murder he would tell what he knew, and so further proceedings for the same deaths may yet be brought.)
Evidence is necessarily sparse, and I find it difficult to differentiate between the two prisoners on the information before me.
Doing the best I can I would support that fifteen years in each case would be a proper minimum. If, as the trial judge thinks possible, further facts come to light, I would welcome an opportunity to reconsider this case.
The Home Secretary's decision
The Secretary of State gave careful consideration to the facts of this case, the nature of the offence in question and the comments of the judiciary. He had particular regard to the fact that this was a double murder and concluded that the offences warranted a tariff of sixteen years and set the tariff at sixteen years accordingly.
The statutory provisions and previous judicial authority
(5) As soon as, in the case of a life prisoner to whom this section applies -
(a) he has served the [relevant] part of his sentence... [that is the minimum term]; 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.
(1) In dealing with an application under paragraph 3, the High Court must have regard to -
(a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it,
(b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967... as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and
(c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such a notification has been given.
(2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to –
(a) the general principles set out in Schedule 21, and
(b) any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence.
4 (1) If -
(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
(b) the offender was aged 21 or over when he committed the offence,
the appropriate starting point is a whole life order.
(2) Cases that would normally fall within sub- paragraph (1)(a) include -
(a) the murder of two or more persons, where each murder involves any of the following -
(i) a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) a murder done for the purpose of advancing a political, religious or ideological cause, or
(d) a murder by an offender previously convicted of murder,
5 (1) If -
(a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and
(b) the offender was aged 18 or over when he committed the offence,
the appropriate starting point, in determining the minimum term, is 30 years.
(2) Cases that (if not falling within paragraph 4(1)) would normally fall within sub-paragraph (1)(a) include -
(a) the murder of a police officer or prison officer in the course of his duty,
(b) a murder involving the use of a firearm or explosive,
(c) a murder done for gain (such as a murder done in the course of furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
(d) a murder intended to obstruct or interfere with the course of justice,
(e) a murder involving sexual or sadistic conduct,
(f) the murder of two or more persons,
(g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or
(h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.
6 If the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph 4(1) or 5(1), the appropriate starting point, in determining the minimum term, is 15 years.
Aggravating and mitigating factors
8 Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point.
9 Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order.
10 Aggravating factors (additional to those mentioned in paragraph 4(2) and 5(2)) that may be relevant to the offence of murder include -
(a) a significant degree of planning or premeditation,
(b) the fact that the victim was particularly vulnerable because of age or disability,
(c) mental or physical suffering inflicted on the victim before death,
(d) the abuse of a position of trust,
(e) the use of duress or threats against another person to facilitate the commission of the offence,
(f) the fact that the victim was providing a public service or performing a public duty, and
(g) concealment, destruction or dismemberment of the body.
11 Mitigating factors that may be relevant to the offence of murder include -
(a) an intention to cause serious bodily harm rather than to kill,
(b) lack of premeditation,
(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 ...), lowered his degree of culpability,
(d) the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation,
(e) the fact that the offender acted to any extent in self defence,
(f) a belief by the offender that the murder was an act of mercy, and
(g) the age of the offender.
In recent years the Home Secretary has set a period in line with the judicial recommendations in a large majority of cases, but in a small minority of cases the period set has been either longer or shorter than the judges have recommended. (Paragraph 8)
This Statement replaces the previous single normal tariff of 14 years by substituting; a higher and a normal starting point of respectively 16 (comparable to 32 years) and 12 years (comparable to 24 years). These starting points have then to be increased or reduced because of aggravating or mitigating factors such as those referred to in paragraphs 10-18 below. It is emphasised that they are no more than starting points.
My current practice is to take 14 years as the period actually to be served for the 'average', 'normal' or 'unexceptional' murder. This is longer than the period (12 years) which Lord Lane took as his norm 10 years ago ... I think the recommended level has risen over the last decade.
It seems to me to be 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.
The legislation referred to was the Criminal Justice Act 2003. Rose LJ came to this conclusion notwithstanding the omission of progress in prison from the lists of factors to be taken into account in what became Schedule 21 to the Act.
The Home Secretary has never issued a definition of what constitutes progress in prison. Cases are considered on an individual basis and exceptional progress has to stand out clearly from the good progress in prison that is expected of all mandatory life sentence prisoners. In broad terms the Home Secretary would look for an exemplary work and disciplinary record in prison, genuine remorse, and successful engagement in work (including offence-related courses) that has resulted in substantial reduction in areas of risk. All these would have to have been sustained over a lengthy period and in at least two different prisons. To reach the threshold of exceptional progress there would also need to be some extra element to show that the lifer had done good works for the benefit of others. Examples would be acting as a Listener (helping vulnerable prisoners), helping disabled people use prison facilities, raising money for charities, and helping to deter young people from crime. Again there would need to be evidence of sustained involvement in at least two prisons over a lengthy period.
39. There are before this court, although, necessarily, from their dates, they were not before the Secretary of State when he made his decision, reports on Rowland made between March and May of this year, which show that he has been making very good progress.
40. He has done considerable work on offending behaviour. He shows significant remorse. The risk of him re-offending has been considerably reduced, and he is part of a Listeners scheme, all of which, submits Mr Southey, make it arguable that he has made exceptional progress, within the criteria identified in paragraph 10 of Mr Morris' statement.
41. He is presently at an open prison, and working four days a week outside the prison and one day on an Open University degree course in the prison.