England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/03/2006

Mr Justice Stanley Burnton :

Introduction

1. This is an application by John Cadman for the setting of a minimum term pursuant to paragraph 3 of Schedule 5 to the Criminal Justice Act 2003. An oral hearing had been ordered by Henriques J. on 27 July 2005 to enable the Court to have the benefit of oral submissions on, in particular, the arguably exceptional progress made by the applicant since he was sentenced in 1988 and the question of its relevance to the setting of a minimum term under that provision. The present minimum period to be served by the Applicant, as last determined by the Home Secretary, is 25 years. That period would expire in December 2013, when the Applicant will be aged 45.

The Applicant

2. The Applicant was born on 19 November 1968, and is therefore aged 37. His father died when the Applicant was aged 12. His mother did not remarry. He has a brother and 2 sisters. Until the index offences he was lightly convicted: an offence of theft (plus a similar offence taken into consideration) led in 1985 to a 6 months' supervision order; in 1986 he was fined for arson and criminal damage. His education suffered from his behaviour after his father's death: he was suspended or expelled from one school and at age 16 he was expelled from his next and last school.

The facts of the offences

3. The Applicant was convicted of 3 murders, all of which were committed with his co-defendant Shaun Cooke in the course of their burglaries of the homes of elderly persons. The Applicant was aged 18 at the time of the offences. The first victim was Getel Gimpelson. She was aged 82. Between 17 and 20 August 1987, during their burglary of her home, they entered her bedroom. She was in bed asleep. She awoke. According to the Applicant's most recent account, Shaun took a pillow and placed it over her head. He and the Applicant then held it down and suffocated her. They made good their escape.
4. Shaun Cooke and the Applicant decided to commit another burglary. They broke into the home of Francis Waters, a man they had observed and knew to be old and disabled, and stole cash and other items. He and his wife were also in their 80's. Their break-in was not detected until after their escape.
5. A fortnight later they decided to return to Mr Waters' house to steal silverware they had seen there. In the early hours of the morning of 5 September 1987 they again broke in. This time they disturbed Mr Waters and his wife, who got up. The Applicant and Shaun ordered them to return to their bedroom and to lie down on their bed. Mrs Waters became agitated. The Applicant suffocated her with a pillow, while Shaun strangled Mr Waters with his belt.

The trial and the setting of the tariff

6. The Applicant pleaded guilty to the burglaries but denied that he had played any part in the murders. He admitted manslaughter. He and Cooke were convicted of all three murders on the basis that they were parties to a joint enterprise, and on 14 December 1988 they were sentenced to life imprisonment.
7. The trial judge, Caulfield J, did not distinguish between the criminality of the Applicant and Cooke. He recommended a tariff of 15 years, what would appear to be a short period for a triple murder. His comments were understandably severe:

"These young men murdered 3 defenceless aged victims simply to avoid detection in my view. There is no other explanation. They were remorseless."

8. On 21 December 1988, Lord Lane, the Lord Chief Justice, increased the recommended tariff to 18 years. He commented:

"I would be somewhat more severe. The killing to silence the victims merits 15 years. The multiplicity raises the figure to 18 years in my opinion."

9. The Secretary of State decided that these periods were grossly inadequate. He stated:

"This pair killed 3 elderly and vulnerable people in the course of a burglary in order to avoid detection. I regard this as a 30 year case."

The Minister (who I understand was not the Home Secretary himself) also wrote:

"I regard the judicial recommendations as wholly inappropriate and if I may say so grossly irresponsible."

It seems to me that this comment says more about the writer than the judiciary.

10. Following the decision of the House of Lords in Doody [1994] 1 AC 531, by letter dated 6 October 1994 the Home Secretary informed the Applicant of his 30-year tariff and offered to consider representations on it. Representations were submitted on the Applicant's behalf, and by letter dated 30 November 1998 the Tariff Section informed him that the Home Secretary had decided to set his tariff afresh at 25 years. The statement of reasons referred to the facts of the offences and continued:

"The Secretary of State has taken into consideration that you were 18 years old at the time of the offences. He accepts that your institutional performance has been good throughout your sentence and considers that this will stand you in good stead as you progress towards consideration for eventual release. He has not, however, been persuaded that you have, as yet, made exceptional progress which would justify a reduction in your tariff on that basis. The Secretary of States accepts that you are now genuinely remorseful for having murdered the three victims. He notes that neither the trial judge, nor the Lord Chief Justice, sought to distinguish between you and your co-defendant as to relative culpability and he has not been persuaded that he should make any distinction.

The Secretary of State does not accept that a tariff of 18 years, as recommended by the Lord Chief Justice, is sufficient to satisfy the requirements of retribution and deterrence for your offences. He has attached weight to the fact that you murdered an elderly victim whilst committing a burglary in her home so as to avoid detection. He has also attached weight to the fact that in less than three weeks later you murdered two elderly people whilst committing a burglary in their home and again solely to avoid detection.

Having regard to all the circumstances of your case, the Secretary of State has concluded that a tariff of 25 years is necessary to satisfy the requirements of retribution and deterrence for your offences."

The italics are in the original.

The submissions on behalf of the Applicant

11. The submissions on behalf of the Applicant emphasise his youth at the date of the offences, his remorse and what is contended to be his exceptional progress since he was sentenced. The contention that the determination by the Court of a minimum period in excess of that recommended by the Lord Chief Justice would be a breach of Article 7 of the European Convention of Human Rights was wisely abandoned.
12. "Exceptional progress" is a term of art in the present context. I shall consider below whether it has been established, and, if so, its relevance.

The legislative framework

13. The legislative provisions applicable to the decision before the Court was set out by Hooper J (as he then was) in Riaz [2004] EWHC 74 (QB), and by myself in Haq [2005] EWHC 304 (Admin), and it is unnecessary to set them out in this judgment. I must, however, recant from the statement I made in paragraph 15 of Haq to the effect that "the general principles set out in Schedule 21" to which paragraph 4 of Schedule 22 to the CJA 2003 requires the Court to have regard when considering the seriousness of the offence do not include the starting points specified in that Schedule for determining the minimum term. Given the identical wording of section 269(5)(a), it is clear that the "general principles" include those numerical starting points.

Seriousness

14. As was accepted by both parties during the course of this hearing, the provisions of Schedule 22 give rise to a number of practical difficulties. Normally, when the Court is enjoined to "have regard to" a number of matters, they are matters that bear upon its decision, but are not the matter to be decided. For example, the Court might be required in determining a sentence to have regard to the age of the offender, his previous convictions and the content of any pre-sentence report. When determining the minimum period to be served by an offender to whose application Schedule 22 applies, on the other hand, the Court is required to "have regard to" a number of potentially different minimum periods recommended or decided by different persons at different times. In Riaz Hooper J said, at [46], that he found paragraph 4 of the Schedule "very difficult if not impossible to apply", because it was "not possible to reconcile the views" that had been expressed by the judiciary and the Home Secretary as to the applicant's tariff. Unlike Hooper J, I have had the benefit of oral submissions, but neither of the counsel before me was able to elucidate the legislative direction; nor can I.
15. In the present case, the general principles in Schedule 21 require the Court to decide that the Applicant's offences were of particularly high seriousness. These were murders of two or more persons (paragraph 5(2)(f)) done for gain (paragraph 5(2)(c)). The Applicant was aged 18 when he committed the murders. It follows that the appropriate starting point in determining his minimum term under Schedule 21 is 30 years. There were additional aggravating factors, namely that there were murders of 3 persons rather than 2. In addition, the victims were particularly vulnerable: paragraph 10(b). At the date of his sentence, the only mitigating factor was the age of the Applicant. If the provisions of the Act had been in force at the date of sentence, I think that the appropriate minimum term would have been 30 years. I did not understand Mr Owen to dissent from this.
16. It follows that in assessing the seriousness of the offences (to which paragraph 4(1) of Schedule 22 requires the Court to have regard) the Court is required by that paragraph to "have regard to" the following:

(i) The period of 30 years determined by applying the principles in Schedule 21.

(ii) The trial judge's recommendation of a tariff of 15 years.

(iii) The Lord Chief Justice's recommendation of a tariff of 18 years.

In addition, paragraph 4(1)(c) requires the Court to "have regard to":

(iv) The length of the notified term, i.e., 25 years.

17. Curiously, and to my mind illogically, in the present case the Court is required to have regard to a minimum term, namely the period of 30 years arrived at by applying the principles in Schedule 21, while at the same time being prohibited by paragraph 3(1)(a) of Schedule 22 from determining that the minimum term is greater than the period of 25 years most recently notified by the Home Secretary.
18. Inevitably, the Court must decide to prefer one or more of the decisions as to the minimum term referred to above as against the others. In this connection, Mr Morris (the Head of the Tariff section in the Lifer Unit referred to in the judgment of the Divisional Court in Cole, Rowland and Hawkes) helpfully addressed me. He suggested that the greatest weight should be given to the decision of the Home Secretary. He said that until Lord Bingham LCJ's letter to the judiciary of 10 February 1997 there had been no consistency in the tariffs recommended by trial judges. On the other hand, the senior civil servant within the Home Office responsible for setting tariffs had substantial experience and was able to give consistent advice to successive Home Secretaries. Mr Morris suggested that the accumulated Home Office experience justified its decisions being given greater weight than the recommendations of the Lord Chief Justice of the time.
19. I entirely accept that until 1997 there was no consistency in the recommendations of trial judges. Their recommendations were not published or subject to public discussion, and there was nothing akin to the guidance given by Lord Bingham LCJ in 1997 or by Lord Woolf LCJ in the Practice Direction (Criminal Proceedings: Consolidation) at [2002] 1 WLR 2870 or that at [2004] 1 WLR 1874. Different considerations however apply to the recommendations of Lord Lane LCJ. He considered every judicial tariff recommendation during his period of office, which began on 15 April 1980, over 8 years before he made his recommendation in the present case. He therefore had considerable experience of tariff periods at the time, and I should be surprised if his recommendations lacked consistency. Nor do I believe that he would have made a recommendation without full consideration of the facts of the case as found from the papers submitted to him. Like Hooper J in Riaz, I should be inclined to favour the recommendation of the Lord Chief Justice as against that of the Home Secretary.
20. There is in my judgment a further reason to give greater weight to the judicial recommendations. The determination of the Applicant's tariff by the executive arm of government infringed his rights under Article 6 of the European Convention on Human Rights. This country's obligations under the Convention required his tariff to be determined by the independent judiciary. If it had been, there can be little doubt that it would have been no more than 18 years.
21. There is one other point that is worth mentioning. The implication of Schedule 22 is that the High Court will reconsider a decision made by the Lord Chief Justice of the day when making his recommendation. Indeed, that recommendation is only one of the matters to which the Court must have regard. Of course, there will be cases where the information available to the High Court is very different from that before the Lord Chief Justice. It is nonetheless curious, and to some extent embarrassing, that a later puisne judge should be required, possibly on information that does not materially differ from that before the Lord Chief Justice, to reconsider his decision.
22. Lastly, although a decision by the Court on this application determining the minimum term to be served by him as a period in excess of 15 or 18 years would not infringe the prohibition in Article 7 against retrospective increases in penalties, it seems to me that fairness points against giving substantial weight to subsequent increases in such periods. In this connection, I recall that the starting point referred to by Lord Bingham LCJ in his letter to judges dated 10 February 1997 for an "ordinary" murder was 14 years. See too the Practice Statement (Juveniles: Murder Tariff) [2000] 1 WLR 1655. The Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 stipulated for a starting point of 15 to 16 years for murders where the offender's culpability was exceptionally high or the victim was in a particularly vulnerable position: paragraph 49.13.
23. However, while I must take all these factors into account, ultimately the High Court is required by Schedule 22 to make its own judgment and come to its own decision on the appropriate minimum term.

Has the Applicant made exceptional progress?

24. The Applicant's conduct in prison has been "without blemish". He has undertaken considerable coursework. In 1997, he took the course on Anger Management. The group leaders felt that he "showed throughout the group that he is capable of insight into his own behaviour and also of understanding others". The administrator of the Assertiveness and Decision-Making course he undertook in 1998 wrote: "He demonstrated patience and a respect for the rights of others on the group and an ability to recognise his own responsibilities and rights." In the same year he was assessed for the Reasoning and Rehabilitation course, and it was found that he did not require it. In 1999, he took the Relationships course. The facilitators of that course concluded that "we would congratulate John on his openness/willingness to see other perspectives and is enabling interpretations of others' processes without the loss of his own integrity".
25. The Applicant has passed a number of City & Guilds examinations and RSA's and GCSE in Maths and English, and had taken a number of Open University courses, culminating in a bachelor's degree. This is in marked contrast to his relatively uneducated situation in 1987. He has taken up chess very successfully, reaching the British Open final in correspondence chess.
26. He has been active in raising money for charities. His extensive charity work between 1989 and 2000 is listed at page 7 of the representations made on his behalf in 2001 by his then solicitors.
27. Those representations also stated that the Applicant had never failed a drug test since coming into prison. He had given up smoking and adopted a healthier lifestyle, to the extent that he had reduced his weight from 16 stone 5 lbs in 1991 to 11 stone 3 lbs in 1995.
28. The Applicant has been supported by his family throughout. He has taken Buddhist vows within prison.
29. The Education Officer at HMP Kingston in a report dated 24 March 1999 made the following comments:

"I understand that the trial judge recommended a tariff of 15 years but this was increased to 18 years by the Lord Chief Justice and to 30 years by the Home Secretary. It has subsequently been reduced to 25 years. I would like to see the tariff reduced still further for the following reasons:

1. He has done all the work that is necessary, I believe, to understand his offending behaviour and to implement changes in his life. He has gone a considerable way toward making those changes and I believe would prove himself eventually in open conditions.

2. The Lord Chief Justice, on the basis of the evidence and with his wide knowledge of sentencing policy at the time of the crime, recommended 18 years.

For these reasons I would support a tariff of 18 years in this case."

The Education Officer added, in October 1999:

"My experience of him is that [he is] an able and committed student who demonstrates exemplary behaviour within the Education Department."

30. A report dated 4 January 2000 by Governor McKinlay, the Head of Lifer Services at HMP Kingston, included the following:

"John Cadman was only eighteen years of age at the time of the index offence. At the age of twelve Mr Cadman's father died and he adopted what would best be described as a hedonistic attitude to life. Failed achiever at school, disruptive, drug abusing and drinking alcohol. Exceptional progress has been made, he has taken some major knocks such as the dramatic increase in tariff. He certainly faltered at that time, but has since gained momentum. The burglaries surrounding the index offence in their planning were quite sophisticated and with a co defendant it is difficult to identify the pre conviction individual with the person being reported on.

With being in custody for over twelve years, Mr Cadman does not appear to have become institutionalised. He recognises his active participation in such crimes and accepts that whatever the circumstances there is no excuse for his actions.

Increased maturity has contributed to the reality that he contributed to the deaths of three people. This is clearly identified remorse for such an involvement and of the shame and humiliation that he has caused his own family.

It is considered that he no longer minimises the offence, and has learnt a very hard lesson, the difficulty will he become numb to the impact of a twenty five year tariff. He has avoided institutionalisation very well, but for how much longer?

…

He has applied himself fully to bettering himself and making up for lost academic time. He is now in his third O.U course. He has attended computer classes and gained computer literacy certificates. He also completed a VTC and achieved a City and Guilds in Draughting Cad and Desk Top Publishing. He is currently employed as a CAD Draughtsman. He is highly respected by past and present instructors and has proved that he can work clearly and precisely and within time bands. He is self motivated, able to use his own initiative. Quality of work is well above the required standard."

Under the heading "Assessment of Suitability for Release" Governor McKinlay stated:

"The current life sentence has been very much a learning period for Mr Cadman. He is not yet halfway through his revised tariff. For such offences such a tariff at that time was understandable as a period of retribution, but in the considerable change in attitude, behaviour and performance and clear recognition of his hedonistic attitude and lifestyle, one must question whether such a tariff remains appropriate, and what will it achieve?

It is recognised that there is more work to be done and progress to be made. The dilemma is should he progress onto Category 'C' to be tested in less secure conditions, which will probably mean at least two Category 'C' allocations, or to remain at Kingston for a further period to complete the one to one counselling. He will continue to be subject to annual reviews and recommendations can be made at any time in the future. "

31. A probation officer's report dated February 2001 shows how far the Applicant had progressed. He had finally admitted his active role in the murders. The officer wrote:

"John has made significant progress in relation to his Risk Factors. Exploring his early years and the specific events that led up to the Index Offences has increased his insight into the Risk at the time. His admission to his part in two of the murders has and will help him to continue to progress in relation to these Risk Factors. Since the offences he has matured and had time to reflect. He is able to communicate his feelings. He discovered that he can be open and honest, the result being that he can continue to move forward.

Although the structured sessions in relation to this work were completed in October last year, John and I have continued to meet periodically on an individual basis. It is very clear that John continues to work on the issues raised during the course of this in depth analysis. In my view he has made exceptional progress in relation to risk."

32. In a report dated 3 December 2001, the Applicant's Seconded Probation Officer stated:

"In her F75 report of 1999 my colleague Ms King indicated that, in terms of risk and security, Mr Cadman would be a suitable candidate for Category 'C' conditions. I fully concur and endorse this view. Whilst acknowledging the length of tariff yet to expire, I would recommend that active consideration e given to Mr Cadman serving periods in two Category 'C' establishments, HMP the Verne and HMP Erlestoke.

In my professional opinion Mr Cadman has made exceptional progress in the intervening two years between F75 reviews. The offence analysis work, which he undertook was a challenging, emotionally draining and extremely painful process for him, yet Mr Cadman did not flinch from the task he had set himself.

Mr Cadman had prepared himself, in terms of the work he had done on his own personal development, but he was still taken by surprise at the intensity of feelings the in depth work evoked and the deep sense of relief he experienced from disclosure of the truth after so many years of self-delusion and denial.

Were it not for the length of Mr Cadman's remaining tariff, at the stage of the first formal review of his case, I would be minded to comment that he would be a suitable candidate for consideration for progress to Open conditions."

33. Governor McKinlay again reported on the Applicant on 22 January 2002. Under the heading "Assessment of Suitability for Release" he stated:

"In my view it is now the length of tariff that is keeping him in custody. While it is fully recognised that he has benefited from a 5 year reduction in tariff from 30 to 25 years and has a mandatory Parole Board Review at the 17 year stage in September 2004, this will not consider open conditions. This will not occur until 2010.

He has exhausted every available opportunity and resource in the Category 'B' estate. It is difficult to set any other targets than to maintain the same positive attitude, continue with his degree and continue working in the workplace with the same level of commitment. In my view he can do this "standing on his head" and consider that he needs a fresh set of challenges.

While recognising the impact of such a long tariff inhibiting progress, exceptionally in this case I am satisfied that there is sufficient reduction in the risk that he presents to the community that active consideration be given for Category 'C' conditions. While it is recognised that this may mean serving Category 'C' in two establishments, Mr Cadman needs the challenges to prove himself further but will also benefit from recognition of the sustained and significant progress he has made over the years. If it was in my remit and I did not have the constraints of the Life Sentence Plan, I would be suggesting active consideration for open conditions within the next 2-3 years rather than as late as 2010. This demonstrates my personal assessment of Mr Cadman's real potential in his reduction of risk to the community, and that Category 'C' should in reality be a short term stepping strategy.

There are no apparent security or control concerns, and he consistently produces negative drug test results.

In conclusion, I am in the fortunate position in recognising that positive progress needs to be sustained and that a protracted stay in Category 'B' would be counterproductive and of no benefit to Mr Cadman or sentence planning and actively recommend Category 'C' conditions."

34. The Applicant's Case Officer reported on him on 28 January 2002. His reported included the following:

"Three elderly people lost their lives as a result of this man's action. I am satisfied after having spoken to Cadman at length, that his showing of deep remorse is genuine. He accepts that there is no excuse for his actions and accepts full consequences of his actions

…

I am satisfied that this man has made 'exceptional progress' since my last F75 of December 1999. This meets the criteria set by the then Minister of State for a further 5 year reduction in tariff. An appeal on this matter is in progress. It is therefore my recommendation that this man be made a Category 'C' prisoner. His preference is to remain at Kingston as a Category 'C' prisoner."

35. The Visiting Buddhist Minister at HMP Verne, to which the Applicant had been transferred in April 2002, reported on him on 13 April 2003. He said:

"John arrived at the Verne in April 2002. He immediately began attending weekly meetings of the Buddhist group. It was apparent that he had a clear understanding of Buddhist teachings, gained mainly through his reading through his philosophy degree. He decided to register as a Buddhist sometime after that. Subsequently he became the orderly for the Multi-Faith Centre and remains so at this time. His work is exemplary and without doubt he has been the most conscientious orderly I have come across in all the time I have been at the Verne (15 years). His practice is very sound and based on a very practical and clear understanding of the teachings. He relates extremely well to other members of the group and is supportive and helpful to those men who are new enquirers."

36. In September 2004, the Parole Board recommended that the Applicant be transferred to open conditions. In their statement of reasons, they said:

"…Mr Cadman initially had difficulty in accepting full responsibility for the offences and continued to blame his co-defendant for a number of years. Initial assessments of Mr Cadman suggested that he had not seen himself as being directly involved on the deaths of the victims and that he blamed his co-defendant for the attacks, to the extent that he had fully expected to be found guilty of manslaughter and that initially he pursued a course of appeals against the conviction.

Following the increase of his sentence tariff to 30 years, Mr Cadman appears to have reached a turning point and undergone a transformation in terms of taking responsibility for his offending. After his transfer to HMP Nottingham in 1996, it was reported that Mr Cadman had started to accept his guilt and was coming to terms with his responsibility for the deaths of three elderly people and he was prepared to work on areas of concern that were identified. In 1999, Mr Cadman was identified as having four risk factors: being over controlled, lacking individual empathy, use of violence and lack of social responsibility. Mr Cadman undertook anger stress management, improving assertiveness, decision making and responsibility courses and had been assessed as not requiring a reasoning and rehabilitation course. He also undertook one-to-one counselling with Probation and a relationships course.

In 2002, it was recognised that Mr Cadman had undertaken extensive offending behaviour work; he had made constructive use of his time in prison; he had made exceptional progress in relation to risks; but his risk factors were inactive and he was considered not to need further accredited programs.

Mr Cadman has undertaken two escorted town visits; he has been developing realistic and well-tempered resettlement plans with Probation; he is on the super-enhanced wing and is described as a mature, kind individual.

Current reports from the Lifer Governor, the Senior Wing Officer, Mr Cadman's Personal Officer, the Seconded Probation Officer, the Home Probation Officer and the Buddhist Chaplain support a move to open conditions and suggest that Mr Cadman poses a minimal risk to the public. Staff describe him as 'an exceptional life sentence prisoner who is more than ready' for a move to open".

37. The authors of the reports referred to above who opined that the Applicant had made exceptional progress must have been aware that it was the practice of the Home Secretary not to reduce a tariff unless there had been "exceptional circumstances" or "exceptional progress". In a statement provided to the Divisional Court in Cole, Roland and Hawkes v Home Secretary [2003] EWHC 1789 Admin, Mr Morris, the Head of the Tariff Section in the Lifer Unit, said:

"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."

38. I have no doubt that those authors used the expression advisedly, knowing that progress that was very good or even excellent would not justify a reduction in tariff. Faced with their written opinions, with no indication that the authors misunderstood either the meaning or the import of the expression, a judge should be slow to reach, and would have to justify a different, conclusion. There is no such justification in the material before me: the Applicant has satisfied the requirements set out in the above cited paragraph, including the requirement of good works.
39. I conclude, therefore, that the Applicant has made exceptional progress since his conviction such as would have justified the Home Secretary in reducing his tariff if the decision were his.

The effect of exceptional progress

40. Neither Schedule 21 nor Schedule 22 refers to progress since sentence or indicates that it is to be taken into account. In the case of Schedule 21 this is unsurprising, since it applies to the original sentencing decision. In general, it is only in relation to transitional cases to which Schedule 22 applies that the question of exceptional progress can arise. Schedule 22 does not in terms prohibit the Court from taking exceptional progress into account. In Cole, Rowland and Hawkes, Rose LJ, Vice President of the Court of Appeal, Criminal Division, giving the judgment of the Divisional Court, set out the following paragraph from the statement of Mr Morris referred to at [37] above:

"8. Under the draft new legislation the High Court, when setting minimum terms, will 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 has never intended that the courts 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."

The draft legislation to which Mr Morris referred was, of course, the Criminal Justice Act 2003. I do not believe that Schedule 22 as enacted differs materially from the Bill to which Mr Morris referred. Later in his judgment, Rose LJ said:

"[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."

41. In his decisions before the 2003 Act came into force, it was the practice of the Home Secretary to reduce a prisoner's tariff if he had made exceptional progress or there were exceptional circumstances. Apart from the human considerations to which Rose LJ referred, it would seem unlikely that Parliament impliedly decided when enacting the Act that such factors should be excluded from consideration. In this connection, it is perhaps relevant that the Criminal Division of the Court of Appeal regularly takes into account reports of a prisoner's progress or health in prison when considering appeals against sentence in non-lifer cases.
42. I have no doubt therefore that the Applicant's exceptional progress should be taken into account in determining the minimum period he is required to serve. The question then arises as to the extent of the reduction to that period that should be made.
43. It was the practice of the Home Secretary, where he was satisfied that there had been exceptional progress, to reduce the tariff by no more than one or two years. I do not find this surprising. The tariff was intended to reflect the requirements of punishment and deterrence, and should therefore reflect the seriousness of the offence. Progress in custody is principally relevant to risk on release from custody, and will be taken into account by the Parole Board. The Applicant's exceptional progress does not diminish the seriousness of the terrible offences he committed. To my mind, the 2003 Act does not justify increases in reductions on account of exceptional progress substantially beyond those it was the practice of the Home Secretary to make.

Conclusion

44. I am conscious that when so many years have passed since the offence, it is easy to focus on the situation of the offender, at the expense of the victims and their families, and to diminish the seriousness of the index offences. I have sought to avoid that potential pitfall.
45. In the absence of exceptional progress, for the reasons I have given above, I should have determined a minimum period of 21 years. That gives weight to the recommendation of the Lord Chief Justice, but increases it having regard to my assessment of the seriousness of the offences and the lack of any contemporary significant mitigating factors other than the age of the Applicant, and the notified minimum period. Given that there has been exceptional progress, a reduction falls to be made, which should be 2 years. I order pursuant to paragraph 3 of Schedule 22 to the 2003 Act that the early release provisions there referred to are to apply to the Applicant as soon as he has served a period of 19 years less the period of 15 months and 4 days of his remand in custody.