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
		21/01/2011

Mr Justice Nicol :

1. On 1^st December 2003 Laurence Hughes was found guilty of murder with robbery by the second criminal division of the Regional Court of Regensburg, Germany. The court determined that his guilt was particularly serious and it sentenced him to life imprisonment. On 19^th March 2009 Mr Hughes was repatriated to the UK. Under Criminal Justice Act 2003 s.273 the Secretary of State for the Home Department ('the Secretary of State') is required to refer such cases to the High Court for the making of an order under s.269 of the 2003 Act. The Secretary of State made such a reference on 7^th January 2010. I was asked to consider the reference on 16^th November 2010. Section 274(1) of the 2003 Act provides that I shall determine the reference without an oral hearing. Even assuming that I would nonetheless be entitled to hold such a hearing (c.f. Hammond [2004] EWHC 2753 (Admin)), I have not thought one to be necessary.
2. I have, of course, taken into account all of the papers which I have been sent including the representations made on behalf of Mr Hughes by Julian Young and Co, solicitors dated 8^th November 2010.
3. A Court can make two types of orders under s.269. The most common (s.269(2)) is to fix the minimum term which a life prisoner must serve before being considered for release on licence. The second (s.269(4)) is an order that the early release provisions should not apply. Commonly called a 'whole life tariff', such an order is reserved for the most serious cases.
4. The relevant commencement date for these parts of the 2003 Act was 18^th December 2003. If the murder in question was committed before that date, Schedule 22 of the 2003 Act makes important transitional provisions. In particular, by Schedule 22 paragraph 10, the court may not make a whole life order unless before December 2002 the Secretary of State would have been likely to do so and may not specify a longer minimum term than the Secretary of State would have been likely to have done before December 2002. The Court of Appeal has said that the best guide to the practice of the Secretary of State was the Practice Direction published by the Lord Chief Justice and which is now to be found in the Consolidated Criminal Practice Direction paragraphs IV.49.14 – IV.49.34. The Practice Direction says that for a murder committed after 31 May 2002 and before 18 December 2003 the Judge should apply the Practice Direction of 31^st May 2002 and which is now reproduced in paragraphs 49.23 - 49.33 of the Consolidated Practice Direction.

Background

5. Mr Hughes was born on 6^th November 1973. An important part of the background to his case is that the murder of which he was convicted by the court in Regensberg was not the first murder he had committed.
6. On 25^th January, he was convicted of murder at the Central Criminal Court (Sir Lawrence Verney and a jury). This offence took place on 17^th June 1994 and so at a time when Mr Hughes was 21. His victim on that occasion was Aileen Gibson-Steel who had been his girl-friend. She had wanted to bring the relationship to an end. This had led Mr Hughes to try to commit suicide. On the night in question, they were together. He took some cannabis, amphetamines and LSD. An argument developed. He said she had sprayed CS gas in his eyes. He strangled her. When he realised what he had done he made another attempt to commit suicide. The trial judge commented,

"The killer was more pathetic than vicious. He was very possessive in his attitude to the victim and was emotionally incapable of coping with the possibility that the relationship should end. The final act was probably affected by the consumption of drugs. There is no obvious risk of re-offending. There is undoubtedly deep remorse."

Mr Hughes received the mandatory sentence of life imprisonment. The trial judge recommended that the period necessary for retribution should be fixed at 10 years. The Lord Chief Justice (Lord Taylor C.J.) endorsed the recommendation which was in turn adopted by the Secretary of State.

7. By March 2002 Mr Hughes was in prison in HMP Hollesley Bay which was an open prison. On 9^th March 2002 he absconded from there and fled to the Netherlands. At the time of his escape there were 2 years and 111 days remaining of his tariff before he would have been eligible to be considered for parole.
8. While he was in prison in England, Mr Hughes began a correspondence with Manuela Cokmez. She had escaped from a security and rehabilitation ward of the district hospital of Regensberg and had gone to England. She had been detected and arrested and also convicted of the illegal importation of drugs. It was while she was in prison and awaiting deportation that the correspondence with Mr Hughes began. The letters and phone calls continued after she had been returned to the district hospital in Regensberg.
9. In May 2002 Mr Hughes visited Ms Cokmez. It seems that her regime was relatively relaxed because they were able to arrange to spend the night together at a hotel. The following day she resolved not to go back to the hospital but to abscond with Mr Hughes. She had struck up a friendship with Erwin Bergmann who was a van driver for a parcel transport company. He lived on his own in a flat in Straubing. He agreed to help Mr Hughes and Ms Cokmez and allowed them to stay with him in his flat.
10. Mr Hughes and Ms Cokmez then decided to continue their escape by fleeing to the Netherlands and to steal Mr Bergmann's van as a means of transport. They decided to tie him up and gag him. The plan was for Cokmez to sit on Bergman while he was asleep on the sofa, threaten him with a knife and for Hughes to tie him up. This was to take place on the night of 6^th/7^th June 2002. When, in the middle of the night, the time came for them to carry out their plan, Cokmez became nervous, Hughes pushed her, a glass was knocked off the draining board and Bergman woke up. Hughes grabbed the knife and he threatened Bergman, while kneeling on his upper body. Bergmann resisted and Hughes hit him hard in the face at least 8 times wanting to calm him down.
11. Bergman suffered heavy bleeding to his face from these wounds and a broken nose. The judgment of the court says, "All that resulted in a failure of the central regulatory system of the victim that caused the death of Erwin Bermann at the earliest 3 to 5 minutes after he had suffered the blows. [Hughes] was aware of the fact that he was causing serious injuries to the victim by his numerous fierce blows with his fist into the face of Erwin Bergmann and in doing so recklessly disregarded the possibility of deadly injuries."
12. Hughes and Cokmez thought that Bergmann was still alive although he was not moving. Cokmez tied his hands with a piece of cloth and tied his legs with cloth and with laces. She put a sticking plaster over his mouth and then tied a tea towel over his face and head. Hughes and Cokmez then took the keys to Bergmann's van and flat, a mobile phone, a purse with money and a gold ring. Cokmez locked the door of Bergmann's flat.
13. The two of them went to the van and eventually drove to the Netherlands. Hughes was arrested in Amsterdam on 9^th June 2002. He was transferred to Germany on 30^th December 2002. Cokmez returned to Germany and was arrested in Regensburg on 24^th June 2002. The trial took place in October and November 2003 with, as I have said, judgment being given on 1^st December 2003.
14. Before the trial, Hughes had been examined by a psychiatrist, Dr Lausch, who was the head of the forensic ward at the district hospital of Mainkofen. She recorded his claim that he had been deceived and used by Cokmez. She concluded that, "The personality of the defendant has marked socially dysfunctional features, and he has a narcissistic personality disorder." According to her, socially dysfunctional persons attract attention by a lack of empathy, by their inability to maintain long term relations, by a low frustration tolerance and by an inclination to act aggressively and violently. They have no sense of guilt and they are hardly in a position to learn from experience. They rationalise their misconduct or accuse others of being the originator. Their control of impulses is low and they appear to be permanently irritated. The expert continued that "a proof of his socially dysfunctional personality are the suicide attempts of the defendant, in particular in connection with the killing of his former girl friend; they can easily be explained by the manipulative behaviour described by the defendant."

The Court agreed with Dr Lausch's opinions.

15. In its conclusions, the Court recalled that Hughes had said, at the beginning of the assault "for a few seconds [he] had murder on his mind." The Court added, "Even if the defendant possibly did not want to kill Bergmann when he hit him, he had nonetheless realized that he had seriously injured the victim by his numerous strong blows into the face inflicted with all his strength thereby causing the danger of death. In doing so the defendant recklessly approved of the death of Erwin Bergmann." It found that his mental condition did not impact on his criminal responsibility. Moreover, the two defendants left Bergmann tied and gagged in his flat which they locked when they left. "It can therefore be assumed that the two defendants had recklessly approved of a deadly outcome. …Even when taking into consideration the aforementioned circumstances the court division has no doubt that the defendants considered the death of Erwin Bergmann possible and recklessly approved of it."
16. The court went on to find that Hughes had "acted out of greed" because Bergmann had been killed in the course of a plan to rob him of his van and other property. He was also guilty of robbery with a fatal outcome. In mitigation it was acknowledged that Hughes had confessed his crime, appreciated his guilt and showed remorse. The blows that caused Bergmann's death had been a spontaneous rather than pre-planned act. Nonetheless it was committed in pursuit of a robbery and the victim was someone who had been a friend of Hughes and had accommodated him and Cokmez. While the offence was particularly serious, the Court did not order preventative detention in view of Hughes' young age and the prospect of the defendant maturing during his prison sentence.

Representations made on behalf of Mr Hughes

17. Hughes' solicitors refer to his family history. His father was alcoholic and occasionally violent to members of his family. His father was jailed at one point for sexually abusing his daughters. Hughes began drinking and taking illicit drugs at an early age. The 1994 murder of his girl friend was, as Sir Lawrence Verney observed, connected with his drug taking. Prior to his escape, Hughes attended psychology courses to assist with his depression and low self esteem.
18. In relation to the murder in 2002, the solicitors say that Hughes did not intend to kill Bergmann and only acted in the way that he did as a result of pressure from Cokmez.

Appropriate order if the offence had been committed after 18^th December 2003

19. Criminal Justice Act 2003 Schedule 21 paragraph 4 provides that if the offender is 21 or over at the time of the offence and the seriousness of the offence is exceptionally high, the appropriate starting point is a whole life order. Paragraph 4(2) lists cases which would normally be of exceptionally high seriousness. They include a murder by an offender previously convicted of murder – see paragraph 4(2)(d). When Hughes murdered Bergmann he had already been convicted of the murder of Aileen Gibson-Steel.
20. Had the murder of Bergmann taken place 18 months later, the appropriate starting point would have been a whole life order.
21. That is not necessarily the order which would have been made. A further aggravating feature would have been the fact that Bergmann had been killed in the course of a pre-planned robbery. If Hughes had not had a previous conviction for murder, that feature of the case alone would have meant that the appropriate starting point was a minimum term of 30 years – see 2003 Act Schedule 21 paragraph 5(2)(c).
22. There had also been an element of breach of trust. Hughes and Cokmez were in Bergmann's flat because they were his guests. He was presumably sleeping on the sofa so that they could use his bed.
23. On the other hand there were important mitigating features. Hughes and Cokmez had initially planned only to threaten Bergmann, not to harm him. The assault happened spontaneously. Thus, while the robbery was pre-planned, the attack was not. The findings of the Court as to the mental state of Hughes at the time of the attack are not entirely clear and I have to be cautious about assuming that legal terminology has the same meaning in the two jurisdictions. The Court did record the evidence of Hughes that he at the beginning of the act "for a few seconds had murder on his mind". However, it went on, "Even if the defendant possibly did not want to kill Bergmann when he hit him, he had nonetheless realised that he had seriously injured the victim by his numerous strong blows into the face with all his strength thereby causing the danger of death." The Court went on to say that it had no doubt that the defendants considered the death of Bergmann possible and recklessly approved of it. While this comes very close to "recklessness" as it is understood in English law, I will give Hughes the benefit of such doubt as may exist as to whether the concept is identical. It is quite plain that the Regensberg Court at the very least would have regarded Hughes as intending to cause really serious harm to Bergmann. There is no doubt, in other words, that he had what would be regarded as a murderous intent as English law would understand it. Nonetheless, when it comes to making the orders which s.269 would require, there is a significant difference between an intention to kill and an intention to cause really serious harm. In his case that difference is somewhat muted. Hughes and Cokmez must have appreciated the condition that Bergmann was in when they tied him and left him alone in the flat which they locked when they departed. They thought he was still alive, but their actions meant that, even if this had been true, they substantially reduced the chance of him receiving the medical help which his injuries would have made urgent. As the Court observed, Hughes "thereby accepted that Bergmann may suffer a painful death."
24. The other important mitigation was that in the course of the trial Hughes confessed his crime and showed remorse.
25. I am unimpressed by the submission on behalf of Hughes that he acted in the way that he did only because of the pressure put on him by Cokmez. On the findings of the Regensberg Court, the plan they jointly made involved Bergmann being threatened with a knife but not actually harmed. It was Cokmez's nervousness about going ahead with this which led Hughes in exasperation to seize the knife from her and actually attack Bergmann.
26. Taking all of this into account, if the offence had been committed after 18^th December 2003 a whole life order would not have been appropriate, but I would have fixed a minimum term of 35 years.

What term would have been imposed by the Secretary of State prior to 18^th December 2003?

27. The Practice Direction set two starting points. The first was 12 years, which it described as the normal starting point. The second is described as the higher starting point and is 15/16 years. The present case would come within the higher category since it was committed for gain in the course of a robbery – see paragraph IV.49.26(c). Aggravating features connected with the offence would involve the attempt to conceal the body by leaving Bergmann in a locked room. Hughes and Cokmez thought that they had left him still alive, but his condition was such that, even if they had been correct, he was in peril of dying because of his injuries. Although not specifically mentioned in the Practice Direction, I have no doubt that the breach of trust which I have mentioned above and the grotesque abuse of Bergmann's hospitality would be taken into account as a further aggravating feature of the offence. Aggravating features connected with the offender would certainly include Hughes' previous conviction for murder. The mitigating features would include the spontaneity of the fatal assault on Bergmann, an intention to cause Bergmann really serious harm rather than (as I have interpreted the judgment) an intention to kill and Hughes' remorse and confession in the course of the German proceedings.
28. Putting all of these together, this is not a case where the Court would have imposed a whole life tariff or even a 30 year minimum term (which was then reserved for the most serious cases where, for instance, there were multiple deaths or several factors identified as attracting the higher starting point). However, in combination, I consider that the facts of the case would have led to a minimum term very substantially above the 15/16 year higher starting point.
29. I must also take into account the fact that Hughes had absconded from prison and had not served even the minimum term imposed as a result of his murder in 1994. The minimum term in the present case will run from the date the sentence was imposed by the Regensberg Court. Between Hughes' arrest on 9^th June 2002 and sentence on 1^st December 2003 Hughes was in custody in Germany. Even allowing for that period, there were still some 10 months to run before the minimum period set for that earlier murder had been served.
30. Taking all of this into account, I consider that the appropriate minimum term which would have been set was 25 years.

Conclusion

31. I will make an order that the minimum term which must expire before Hughes is considered for release on licence is 25 years to run from 1^st December 2003.