2004/811/MTR
Neutral Citation Number: [2005] EWHC 304 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2

Thursday, 17th February 2005

BEFORE:

MR JUSTICE STANLEY BURNTON

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A DECISION UPON AN APPLICATION UNDER PARAGRAPH 3 OF SCHEDULE
22 TO THE CRIMINAL JUSTICE ACT 2003

REGINA

-v-

ABDUL HAQ

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Judgment
Mr Justice Stanley Burnton:

Introduction

1.	On 17 December 1991, following his trial at Leeds Crown Court before Ian Kennedy J and a jury, the Applicant, Abdul Haq, was convicted of the murder of his sister Sharifan Bibi and of Hashmat Ali and sentenced by the trial judge to life imprisonment. His co-accused was his brother, Mohammed Saleem, who was similarly convicted of both murders and received sentences of life imprisonment. At the time of the offences, the Applicant was aged 23 years.

2.	Pursuant to section 276 of the Criminal Justice Act 2003 and Schedule 22 to the Act, Mr Haq has applied for the determination of the minimum term following which the early release provisions referred to in Schedule 22 are to apply to him. This is my determination of that minimum term.

3.	For the purposes of my decision, I had carefully considered the representations and material submitted to the court on his behalf, and the guidance given in the Practice Direction (‘Crime: Mandatory Life Sentences) (No. 2) [2002] 1 WLR 2551.

The offences

4.	The facts of the offences appear from the report of the trial judge:

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.

Previous convictions

5.	The Applicant had previous convictions. In January 1978 he was convicted of unlawful wounding. The offence involved his use of a knife. In 1980 he was convicted of two cases of indecent assault and one of unlawful sexual intercourse, and a theft. He was sentenced to three months in a Detention Centre. In 1984 he was convicted of having an offensive weapon in his possession without lawful authority, and on the same date he was bound over to be of good behaviour.

The comments of the trial judge on the case and his and the Lord Chief Justice’s recommendations of his tariff

6.	The comments of the trial judge on the case generally and on the factors to be taken into account by the Home Secretary when considering release were as follows:

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.)

7.	The Trial Judge’s view on the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offences was 20 years in the case of the Applicant and 16 years for Mohammed Saleem. The Lord Chief Justice, Lord Lane commented as follows:

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

8.	The Home Secretary set the period to be served by the Applicant in order to satisfy the requirements of retribution and deterrence at 16 years. In a letter dated 25 October 1994, the Applicant was informed:

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

9.	This application is made under paragraph 3 of Schedule 22 to the Criminal Justice Act 2003. The Schedule is entitled “Mandatory Life Sentences: Transitional Cases.” Paragraph 3 of Schedule 22 applies to “existing prisoners” who have before the commencement date of the Act (18th December 2003), been notified in writing by the Secretary of State either of a minimum period which in the view of the Secretary of State should be served before the prisoner is released on licence, or have been notified that the Secretary of State does not intend that the prisoner should ever be released on licence (described in Schedule 21 as a “whole life order”). “Existing prisoners” are defined as persons “serving one or more mandatory life sentences passed before the commencement date…”

10.	By virtue of paragraph 3, an existing prisoner who has been notified by the Secretary of State of a minimum term, and whose term has not expired, may apply to the High Court for a reduction in the minimum term. By virtue of paragraph 3(1)(a), the High Court may not set a minimum period which is greater than the notified minimum term. Likewise a person who has been notified that the Secretary of State does not intend that he should ever be released on licence, may apply to the High Court for an order setting a minimum term.

11.	By virtue of paragraphs 3 the “early release provisions” apply to an existing prisoner notified of the tariff period prior to the commencement of the Act after he has completed the notified minimum term, or after he has completed a minimum term set by the Court under paragraph 3. The “early release provisions” mean the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997. Subsections (5) and (6) provide:

(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.

12.	Paragraph 11 of schedule 22 provides that the application is to be decided without an oral hearing. In Hammond [2004] EWHC Admin 2753, the Divisional Court concluded that it did not exclude an oral hearing where the High Court Judge thought it appropriate. I do not think it appropriate; and in any event the Applicant has waived his right to such a hearing.

13.	Paragraph 12 requires the High Court to give its reasons in ordinary language and in particular to state its reasons from departing from the notified term. Paragraph 4 provides:

(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.

14.	The determining factor of “seriousness’ reflects section 269(3)(a) of the Act, and, it is to be assumed, reflects what used to be called “punishment/retribution and deterrence” (see R (Anderson) v SSHD [2002] UKHL 46, paragraph 7).

15.	In my judgment, “the general principles set out in Schedule 21” to which the Court must have regard when considering the seriousness of the offence do not include the starting points specified in that Schedule for determining the minimum term.

16.	No issue arises as to paragraph 4(1)(b), the reduction for the period on remand.

17.	I turn to paragraphs 4 to 6 of Schedule 21, the relevant provisions for this application:

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.

18.	Paragraphs 8 to 11 read:

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.

19.	In the case of Riaz [2004] EWHC 74 (QB), Hooper J, as he then was, expressed the view, with which I agree, that the statutory provisions prevent the court from merely adopting the minimum term previously recommended by the judiciary. Paragraph 4(1) requires the High Court in dealing with an application under paragraph 3 to have regard, amongst other things, to the notified minimum term, or to the fact that a whole life order has been notified. This paragraph was enacted notwithstanding that judges in the past have tended, in the case of the gravest murders, to recommend shorter periods than those set by the Secretary of State (see the letter from Lord Woolf to the judiciary dated 16th February 2003), and that this, one assumes, must be known by the legislature.

20.	In Anderson, in which the trial judge and the Lord Chief Justice had recommended 15 years, and the Secretary of State had set a period of 20 years, Lord Bingham said:

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)

21.	Similarly, the “general principles in Schedule 1” contain starting points which are significantly higher than those which are be to found in the guidance issued to judges by Lord Bingham CJ, by letter dated 10th February 1997, and by Lord Woolf CJ on 27th July 2000 and on 31st May 2002 (see the (Practice Direction (Crime: Life Sentences) [2002] 1 WLR 1789). Paragraph 9 of the 2002 Practice Statement sets out the previous starting point and the new starting points:

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.

22.	In his letter Lord Bingham CJ wrote:

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.

Submissions

23.	No representations have been submitted to me by the Secretary of State for the Home Department, and I understand that to be the practice. There may be cases where the family of the deceased seek to make representations, but they have not done so in the present case.

24.	The representations on behalf of the Applicant refer to the extensive and positive reports from prison, including a sentence planning and review board report of 30 May 2003 and a Baxter Risk Assessment and Management Programme report from the University of Liverpool dated 8 July 2002. By letter dated 3 June 2004 the Applicant was informed that the Parole Board had not recommended his release on licence, but had however recommended his transfer to open prison conditions. The reports show that the Applicant continues to deny his guilt of the index offences.

My decision

25.	The Court is required to have regard to the seriousness of the index offences. It must also have regard to the length of the notified minimum term, i.e. 16 years.

26.	The appropriate starting point, in my judgment, is 12 years, which was the normal tariff at the date of sentence: see Lord Bingham CJ’s letter dated 10th February 1997 referred to above.

27.	The Court must then have regard to the general principles set out in Schedule 21 of the Act. It follows from the provisions of that Schedule that the seriousness of the index offences was aggravated by the fact that this was a double murder (paragraph 5(2)f)) and by the fact that the bodies of the victims were concealed and/or destroyed and/or dismembered (paragraph 10(g)).

28.	For the purposes of assessing the seriousness of the index offences, the Court must have regard to the recommendation of the trial judge (20 years) and that of the Lord Chief Justice (15 years). I have done so. These periods were undoubtedly greater than the then normal tariff by reason of the factors mentioned in the previous paragraph.

29.	There was, in my judgment, no substantial mitigation available to the Applicant at the date of his sentence. He was not a man of good character; indeed, he had previous convictions involving violence, though not for serious offences. The motive for the murders certainly did not mitigate their seriousness, nor did the fact that they were, it seems, instigated within the family by someone to whom the Applicant would normally accord respect.

30.	With regard to the Applicant’s conduct since his conviction, in Cole and ors v Secretary of State for the Home Department [2003] EWHC 1789 Admin, Rose LJ said, at paragraph 88:

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.

31.	However, in order to be taken into account, the progress has to be exceptional. Rose LJ referred to the evidence before the Court of the then policy of the Home Secretary in relation to progress in prison:

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.

32.	At paragraphs 39 to 41 of his judgment, Rose LJ referred to the progress relied upon by one of the Claimants, Rowland:

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.

33.	The conclusion of the Court was that it was not shown that Rowland was a sufficiently exceptional case to require his progress to be taken into account in determining his tariff.

34.	In my judgment, the progress of the Applicant since his conviction is not sufficiently exceptional to justify its going towards reducing the minimum period. It is certainly insufficient to justify a reduction, for a double “honour” murder of a sister and her lover, with the aggravating circumstance of the concealment or destruction of their bodies, below 16 years.

35.	In my judgment, the seriousness of the offences committed by the Applicant is such that a minimum period of less than 16 years, i.e., 4 years or one quarter greater than the “normal” tariff at the date of his sentence, cannot be justified. It follows that, subject to the deduction of the period or remand in custody, that part of the sentence to be served by the Applicant before the early release provisions are to apply to him is 16 years. From that period is to be deducted the period of remand in custody, namely 7 months and 7 days. The minimum period determined as required by Schedule 22 to the Act is therefore 15 years 4 months and 23 days.

36.	After I had come to the above conclusion, I received a copy of a victim enquiry report in this case. Having regard to that conclusion, I considered it unnecessary to take account of it and I have not read it.