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
		16 March 2011

MR JUSTICE BEAN

The offence

1. On 18^th February 2002 the Applicant took part in a shocking murder. He was then 17. He was convicted of murder by a jury at the Central Criminal Court the following year. The trial judge, His Honour Judge Paget QC, described the facts in his sentencing remarks in these terms:

"Supenthar Ramachandran was a very vulnerable young man. He was aged 18, slightly built and inoffensive. He was subjected to humiliation before the killing, extreme and gratuitous violence was used against him, and he was set on fire afterwards so that he was unrecognisable".

2. Addressing this applicant and his co-defendant Pradeep Sivanesan who had also been convicted of murder, the judge went on:

"You were with the other defendants throughout that dreadful night and on your admission you were the two defendants who went to fetch petrol in a can before he was set alight. None of you could have known for certain whether he was dead or not. Even the pathologist cannot be sure. Had you been over 21, the minimum term that I would have recommended would have been 17 years, equivalent to a sentence of 34 years. Reducing that because of your ages and the time spent remand, which otherwise might not be counted. The minimum period in which I recommend in your case, Sivanesan is 15 years, equivalent to a sentence of 30 years, and in your case, Arulananthan, 14 years, equivalent to a sentence of 28 years. The only reason for distinguishing between the two of you is the difference in your ages."

3. The Applicant sought leave to appeal against conviction and sentence. Both applications were dismissed by the Court of Appeal after an oral hearing on 12^th May 2005: [2004] EWCA Crim 1343. As to the sentence, Lord Justice Rose said (at paragraph 39):

"It is said [by counsel for Mr Arulananthan] that the judge failed to have proper regard to time spent in custody and to the Applicant's age. He had not attached sufficient weight to the mitigation in relation to the Applicant's state of intoxication on 18^th February, the fact that he was not a principal, that there was no evidence that he had personally used violence, his age compared with the co-defendants, and his previous good character. It is therefore submitted that the minimum term of 14 years was excessive. We disagree. The learned judge properly took into account, in our view, all of those factors on which reliance is placed and the renewed application in relation to sentence is refused."

4. The result is that the tariff set by the sentencing judge will expire on 9^th June 2017 as matters stand.

The tariff reduction scheme

5. 5. In R (Smith) v Secretary of State for the Home Department [2006] 1 AC 159 the House of Lords held that the tariff for a person sentenced to detention during Her Majesty's Pleasure may be reduced on consideration in certain circumstances. The criteria are now set out in a document published by the Ministry of Justice entitled "Criteria for Reduction of Tariff in respect of HMP Detainees". This lays down that in order for a minimum term imposed in respect of such a detainee to be reduced, evidence of one or more of the following should be present:-

"a) Exceptional progress in prison, resulting in a significant alteration in the detainee's maturity and outlook since the commission of the offence and a significant reduction in the level of risk posed to public safety;

b) Risk to the detainee's continued development that cannot be significantly mitigated or removed in the custodial environment;

c) Any matter that calls into question the basis of the original decision to set the tariff at a particular level (for example, about the circumstances of the offence itself of the detainee's state of mind at the time), together with any other matter which appears relevant."

6. The document continues:-

"Specific factors indicative of exceptional progress may include a prisoner having demonstrated:-

i) An exemplary work and disciplinary record in prison.

ii) Genuine remorse and accepted an appropriate level of responsibility for the part played in the offence.

iii) The ability to build and maintain successful relationships with fellow prisoners and prison staff; and

iv) Successful engagement in work, including offending behaviour/offence-related courses with a resulting substantial reduction in areas of risk.

All of these should ideally have been sustained over a lengthy period and in more than one prison. It is not to be assumed that the presence of one or all of these factors will be conclusive of exceptional progress having been made in any individual case. Whether the necessary progress has been made will be a matter to be determined taking into account the specific factors present in each case. To reach the threshold of exceptional progress there would also need to be some extra element to show that the detainee had assumed responsibility and shown himself to be trustworthy when given such responsibility."

The Applicant's record in custody

7. The Applicant served the first part of his sentence at HMYOI Aylesbury. From 2006 - 2010 he was at HMP Grendon. In 2010 he was recategorised from Category B to Category C and is now at HMP Huntercombe.
8. His disciplinary record has been good though not exemplary. In March 2004, at Aylesbury, he was found at a contested adjudication to have been in possession of a DVD of a sexual nature. This was, however, very early in his sentence and it is in my judgment of no continuing significance in assessing his progress. In March 2008, at an adjudication before the Governor at Grendon, he admitted having damaged a door in the prison and was awarded forfeiture of privileges and earnings for 21 days. It also appears from the documents that at the end of 2008 or the start of 2009 he was involved in distributing pornography within the prison, although this was not the subject of a formal adjudication.
9. Despite these blemishes on his record, it is plain that he made very substantial and positive progress during his time at Grendon. He achieved the status of becoming chairman of his wing and maintained his enhanced status. Examples of positive reports on him include the following:

"i) Sathees has returned to exploring his offence on a number of occasions. He deplores the violence used and indeed how he was drawn into it. He is becoming less verbally aggressive towards others." (Notes of sentence planning meeting, March 2009)

"ii) Now as an elder member on the wing and in the group, Sathees on the whole sets a good example. He is insightful and is not afraid to make his views heard in the right way whether that is on the group or on the Wing meetings. …He has worked well and showed consistent and positive development this term." (Ms Scheider, Group Facilitator at Grendon, February 2010)

"iii) In Mr Arulanantham's initial assessment completed upon his arrival at HMP Grendon he presented as ashamed of his offence committed, however appeared to place blame on his co-defendants as they were older and should have known better. Mr Arulanantham has demonstrated a shift in attitude towards his offending and now accepts full responsibility for the part he played in this offence. In relation to the time I have been able to spend with him he has always presented in a polite manner and has always been willing to spend time discussing his index offence, finally feeling comfortable discussing the part he played in this offence and the impact his actions have had not only on the victim and the victim's family, but also on his own family and friends. Mr Arulanantham has also demonstrated extreme remorse for his actions on the night of the offence and has approached me on a number of occasions about becoming involved in the Restorative Justice Scheme." (Ms Sonnenberg, Probation Officer, October 2010)

"iv) From speaking with Mr Arulanantham, and reading his previous case records from previous establishments, there has been a distinct improvement in Mr Arulanantham's behaviour from that of an immature, irresponsible individual who continued to follow his peers to one that is able to maturely and sensibly manage his behaviour on the wing. … Prior to these reports being commissioned, Mr Arulanantham was unaware that there could be a reduction in his tariff. Throughout his sentence he has maintained appropriate and stable behaviour and he has not been subject to any self-harm procedures. … From looking at the information available to me, I am of the opinion that Mr Arulanantham has made significant progress whilst subject to his life sentence. This is based on the information I have read within the reports of the professionals who have worked with Mr Arulanantham throughout his time at HMP Grendon and whilst at other establishments. Mr Arulanantham has engaged with therapy at Grendon for a substantial period of four years, in which during this time he has had no positive drug tests, he has maintained his enhanced status and importantly he has maintained his commitment to reducing his risk. Taking into consideration that the group work itself offers an intense experience and is not for the faint-hearted or those who do not wish to be challenged about their behaviour, it demonstrates his exceptional progress in his sentence."

10. A Tariff Assessment Report dated 25 August 2010 by Phil Hawkins, a Wing Therapist at Grendon, contained a guarded but nevertheless positive assessment of the Applicant:

"Like many young men who transfer from the young offender into the adult estate Sathees has had to develop in maturity whilst still coping with a prison environment. Moreover, Grendon is the only adult jail he knows. Early reports show that he continued for a while to display the same characteristics that plausibly were present in his offence, for example, an unhealthy allegiance to criminal associates and a matching affinity with their values and attitudes, and an apparent arrogance evident in his manner towards others in the community. A good example of this was his involvement in a 'porn scandal' on the wing at the beginning of 2009 (when illicit porn DVD's were trafficked amongst the residents). Initially, his friendship with the main instigator of this 'trade' prevented him from acknowledging any involvement or responsibility; even though the other individual was known to be issuing threats to other men. Furthermore, even when he subsequently became the wing chair, he was attempting to shut down other men brave enough to start owning what was really going on. However, even at this stage he was able to gain something positive out of occupying this position.

This was something of a turning point in his therapy. In the following months, and after his associate was shipped out, Sathees began to see just how in many respects this episode was a carbon copy of the events surrounding his offence. By degrees he began to acknowledge that not only had he succumbed to criminal influence but had also been a coward for not standing up to this. In turn he also began to explore his offence in far more depth, acknowledging his full responsibility for the first time, and how his arrogance was a cover for his shame. Moreover, the reasons for his offence, as described by his group facilitator, began to be unravelled when he made important links between the violence used and his experience of being brought up during the civil war in Sri Lanka when he witnessed horrifying levels of violence (and torture) in his area. Now it is evident from his manner in recalling the offence just how remorseful he now is.

Notwithstanding just the occasional resistance to feedback (for example, when he appeared to bypass the therapeutic process in order to get a favoured job), he has demonstrated marked and significant change in his mental and emotional state.

As mentioned above, Sathees's only major indiscretion on this wing was his participation in porn at the beginning of last year but this became the impetus for some important therapy. Since then, apart form an occasional flash of anger in this close-knit and even 'pressure cooker' community, he has become an embodiment of many therapeutic principles. I would fully expect him to export these to his next jail. By any conventional prison measure, such as adjudications, MDT's etc, he has an almost unblemished record of good behaviour.

I would support some reduction in tariff on the grounds of exceptional progress."

11. Paul Gowin, a Personal and Group Officer at Grendon, wrote a report dated 20^th August 2010. Like Mr Hawkins he considered that the Applicant has made exceptional progress in custody, but his positive assessment was unequivocal:

"In my view it is well documented that Sathees has made exceptional progress in custody. Sathees has fully admitted his guilt and taken ownership of his part in the murder of the victim. Sathees has not minimised any part of what he did that day and speaks of the murder with remorse for the victim. He is very much in touch with the guilt of his actions by doing nothing to stop what was happening. Sathees has looked at his childhood, his criminality and all his negative emotions that led up to the murder. He has shown immense maturity and responsibility by applying himself to both the therapeutic regimes at Aylesbury and here at Grendon…"

12. Another prison officer at Grendon, Paul Stewart, wrote:-

"I feel that the progress he has made since coming to prison as a 17 year old until now provides evidence of exceptional progress in prison, resulting in a significant alteration in Mr. Arulananthan's maturity and outlook since his index offence, and a significant reduction in the level of risk posed to public safety.

Mr Arulananthan has shown genuine remorse and accepted full responsibility for the part he played in his offence, he has also built and maintained successful relationships with fellow prisoners and prison staff and he has successful engaged in Offending Behaviour courses.

I feel that Mr Arulananthan should be given credit for the work he has undertaken since coming to Prison and should be considered for reduction in Tariff as the length of time remaining Mr Arulananthan has to complete before tariff expiration would necessitate spending many years living within closed establishments with the potential of institutionalising him."

Conclusion

13. I do not consider that the Applicant has yet quite satisfied the stringent criteria rightly set for a reduction in tariff. His involvement in what Mr Hawkins described as the "porn scandal" in Grendon in early 2009, including an attempt while he was wing chair to persuade fellow inmates to remain silent about what they knew, added to the relatively minor episode of criminal damage the previous year, means that his record at Grendon was less than exemplary. Moreover, the tariff reduction policy understandably states that ideally the prisoner's performance in more than one institution should be considered, and the papers before me date from a time when the Applicant had only just arrived at Huntercombe.
14. However, the Smith case envisages periodic reviews of the detainee's tariff. I consider that Mr Arulananthan should be given the opportunity to make a renewed application for a reduction in his tariff within two years after the 2010 review. If he does so and the evidence available on that review appears to satisfy the criteria, as one would hope it will, his case should again be referred to a High Court judge to determine whether the minimum term currently due to expire in June 2017 may properly be reduced.