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
		18/08/2016

The Hon. Mr Justice Langstaff

Introduction

1. Kirash Nanthakumar (the Applicant) has applied for a review of the minimum term of imprisonment which he must serve following his conviction for murder.
2. He was born on 30^th September 1989. The murder occurred on 15^th June 2007, when he was not yet, but almost 18. He was 18 when sentenced on 7^th July 2008, following his conviction by a jury, to be detained during Her Majesty's Pleasure to a minimum term of 14 years less 385 days in respect of time served on remand.

The Circumstances of the Offence

3. The Applicant was the youngest of six Tamil men who were tried, four of them for murder. There was a vendetta between rival groups of young men, mainly Tamil, one in Croydon and the other in Tooting. Men from Croydon set out in the early hours of 15^th June 2007 to inflict violence on members of the Tooting gang. Three of the Tooting gang were identified, and chased into a restaurant. It had an open plan kitchen behind a serving counter. The three men, pursued by a group including the Applicant, jumped over the counter, ran into a side lobby, up some steps, through a staff area, and then through a white door which led into a small store room. Behind that was a rear yard formed from what had originally been an alley. Two of the three escaping men were injured in that yard, one seriously; the third was stabbed some 20 times, and slashed a further 11 times, causing a fatal loss of blood.
4. An appeal against conviction was rejected in October 2009 ([2009] CWCA Crim 2368), and more recently I understand a further application to appeal conviction was rejected.
5. The Court of Appeal also considered the sentence which had been passed.
6. At the time of sentencing, the Applicant was over 18. He was sentenced under Section 269 of the Criminal Justice Act not only in respect of the murder, but in respect of the grievous bodily harm caused to one of the other two victims, and an assault occasioning actual bodily harm upon the third (see Section 269(3)(a) which requires a court to take into account the seriousness of the offence "or of the combination of offence and any one or more offences associated with it…"). The court rejected the appeal.

Review

7. In R v Secretary of State for the Home Department ex parte Smith (FC) and another [2005] UKHL 51, the House of Lords considered whether a sentence of detention during Her Majesty's pleasure imposed before November 2000 on the conviction of a child or young person for murder imported a requirement that the minimum term to be served should be subject to periodic review. It held that it should.
8. The current case is not one in which the murder was committed and the sentence imposed at a time when the minimum term was set by the Home Secretary as a matter of executive discretion, as was the case in Smith. However, the reasoning in that case makes it clear that an important distinctive feature of the sentence of detention during Her Majesty's pleasure is that the detainee should be subject to continuing review so that the detainee may be released if and when it is judged appropriate to do so. A fixed minimum term to be served by an HMP detainee before the grant of parole is only provisional, since the progress of the detainee in custody, reported through continuing review of the detainee's progress, may call for it to be varied downward. In paragraph 12 of his speech, Lord Bingham said:

"The requirement to impose a sentence of HMP detention is based not on the age of the offender when sentenced but on the age of the offender when the murder was committed, and it reflects the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation."

9. The criteria for a reduction of tariff require one or more of the following to be satisfied:

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 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 tariff at a particular level (for example, about the circumstances of the offence itself or the detainee's state of mind at the time), together with any other matter which appears relevant.

10. Those factors indicative of exceptional progress may include a prisoner having demonstrated an exemplary work and disciplinary record in prison, genuine remorse, accepting an appropriate level of responsibility for the part played in the offence; the ability to build and maintain successful relationships with fellow prisoners and prison staff; and successful engagement in work including offending behaviour/offence related courses with a resulting substantial reduction in areas of risk. All 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 those factors will be conclusive of exceptional progress having been made: whether it has is a matter to be determined taking into account the specific factors present in each case.
11. To reach the threshold of exceptional progress there also needs to be some extra element to show that the detainee has assumed responsibility and shown himself trustworthy when given such responsibility, demonstrated perhaps by the detainee having done good works for the benefit of others, acting as a listener, helping disabled persons use prison facilities, raising money for charity, and helping deter young people from crime: again, evidence of sustained involvement in more than one prison over a lengthy period is necessary.
12. Nothing I say in reviewing the Applicant's tariff will reduce the seriousness of the murder which he committed jointly with others nor diminish the consequences of it for the victim's friends and family. The crime was dreadful. However, what I have to do is to consider whether during his period in custody the Applicant has demonstrated exceptional and unforeseen progress resulting in a significant alteration in his maturity and outlook since his sentence and consequently whether, since that date there has been a significant reduction in the level of risk posed to public safety so as to warrant a reduction in the tariff.
13. If the tariff is to be reduced this would not of course mean that the Applicant would necessarily be released at the expiry of its term: it merely means that he may lawfully be released after that date if and when – and only if and when – the Parole Board assesses him to be safe for release. The reduction in tariff in effect means that the Parole Board may consider whether it is safe to release him earlier than it would otherwise be able to do.

The Applicant as he was when sentenced

14. It follows, from the above, that I must compare the Applicant as he was at the time he was sentenced, aged 18, with the man he now is at HMP Highpoint.
15. The details I have of the Applicant at the time of sentence emerge from a pre-sentence report based on one lengthy interview. The report was compiled after conviction, but was one in which the Applicant maintained the account which the jury had rejected.
16. He lived in Sri Lanka until he came to England at the age of 6. His father was a supermarket worker, and his mother maintained the home. The family was close and supportive. He left school at 16, with 4 GCSEs and part of a GCSE in Religious Studies completed. He began a Business Studies course, but abandoned it to undertake a course in Information Computing and Technology due to start in September 2007. He was arrested before the start of that course.
17. Whilst on remand awaiting his trial some months later, he completed a number of educational courses and gained enhanced status. His reports and reviews were excellent; his behaviour was good (indeed, he had no previous convictions prior to the index offences).
18. Assessments of his risk of re-offending completed for trial purposes suggested that this risk was low, but noted that this assessment depended in part upon whether he maintained an association with the group of men also responsible for the attack.
19. The picture painted of the Applicant as he was is not one of an immature young man, but of a stable personality, with a supportive background, who was making some educational progress but was nonetheless prepared to go along with older friends and acquaintances in getting caught up in violence which there is no reason to think he instigated, even if he willingly joined in.

The Applicant as he is now

20. The Applicant is now 26 years old. To trace his progress in prison I have sentence planning notes from late December 2014, a tariff assessment report from a probation officer who spoke by telephone to him for around an hour, and a tariff assessment report from his offending supervisor, Mr Keating-Fedders, both of which are dated January 2016.
21. The probation officer, Ms Knowles, reports that there were "clear indications that he has matured both in general and also with regard to his self-perception". He thought he was less liable to act on the spur of the moment, and had a clearer understanding of the way offences impacted on victims. He thought he had fallen in with "the wrong crowd" and had been doing little constructively. She considered that he had shown "exceptional progress" with exemplary behaviour, making a positive contribution to prison life, to other inmates and to visitors, and had "been active in deploying his skills in order to achieve positive outcomes and resolution in several confliction situations" (sic). No detail, however, is given of these situations to help to judge how meaningful they are: the expression of these views is very general in its terms. She adds that he is responsible for working specifically with IPP prisoners in helping them to adjust to their respective sentences. He has taken part in charity events and has undertaken work within various prisons that "required an enhanced level of trust and competence" (again, minimal detail is given).
22. Mr Keating-Fedders similarly believes that the Applicant has grown in maturity and outlook (though there is an apparent contradiction between his acceptance of this at one point in his report, relying in large part upon what the applicant has said to him, and his subsequent observation that the Applicant "..feels that in regard to his personal and social development that he is still 17 years old"). He had been naïve and trusting, and did not think through the consequences of his behaviour, but has grown up whilst in custody. He evidences this with three character references from HMP professionals. He considers that the effect of custody has been to prejudice his psycho-social development.
23. Much of this material is at a very high level of generality. The question is whether the progress is exceptional and unforeseen, and I would have wished to have seen more specific material, with less reliance on the views expressed by the Applicant himself which may possibly be self-serving.
24. There is also no objective confirmation of information given to Ms Keating by the Applicant that a co-defendant has accepted that he was the one of the group who was responsible for the actual stabbing.
25. It is generally to be assumed that a prisoner will make some progress in prison: to do otherwise is to suppose that the prison service, part of whose aim is to rehabilitate, has failed in this objective. I have to look for more than this.

Conclusions

26. Though I note what is said about the development in maturity of the Applicant, according to Miss Knowles he continues to deny the substantive offences. Though this remains a little concerning, it has to be seen in context: he has always admitted that he was present at the scene, and plainly accepts that he was part of a group, one of which inflicted the wounds on behalf of the group even if the Applicant personally did not. His approach of denying personal responsibility thus attributes too much significance to the individual actions of those within the group, when all members of it were intent on making a serious attack, but is perhaps understandable.
27. Despite this, both the probation officer compiling a report for the purpose of tariff review, Ms Nowell (albeit she has never met the Applicant in person) and the Applicant's offender supervisor, Mr Keating-Fedders, have categorised his progress as "exceptional". Though they offer no standard of comparison against which to assess their view of what this means, I note it. More objectively, he has been regarded by all, it appears without exception, as a model prisoner. Though Mr Keating-Fedders has known him only for 18 months, and is not therefore personally in a position to assess his progress over any longer period, and has inevitably to rely upon the Applicant's own descriptions of his improvement for drawing firm conclusions as to this progress, I would accept that if there were any information to suggest that the Applicant was not the friendly, thoughtful and conscientious prisoner whom Mr Keating-Fedders describes he would know of it. There are no negative behaviour entries on his record, no warnings, and no adjudications. The Applicant has completed courses in business administration. He has not only occupied a trusted position, as an IPP orderly, but has so well succeeded in a course on mediation that he is called upon as a prison mediator at Highpoint. He has shown that he is able to maintain a positive attitude despite the disappointment of a recent rebuff by the Court of Appeal as to conviction. Of the factors indicative of exceptional progress set out at paragraphs 10 and 11 above he has shown an exemplary work and disciplinary record; he has always expressed remorse for what happened, and his involvement, even if he has never brought himself to accept that he personally was guilty of the murder since he did not inflict the fatal blows himself, he has built and maintained successful relationships with fellow prisoners and staff, and has engaged in work including offending behaviour and offence related courses. On the, albeit somewhat limited, material before me, this has been sustained over a lengthy period and in more than one prison.
28. The necessary additional element called for by the criteria – he must show that he has assumed responsibility, and shown himself trustworthy when given it - is demonstrated (a) by his involvement with other IPP prisoners, helping them to come to terms with the indefinite nature of their sentences; (b) his work as a mediator, resolving some conflict and (c) (although I lack any specific detail) I am reliably told that he has been involved in raising money for charity.
29. In conclusion, it appears to me that he has outgrown the youth of near 18, who was too easily led by older acquaintances, stable though he then was, and albeit a significant element of this growth was to be anticipated. The level of progress that he has shown, together with this personal development, is capable of, and in my view just does, meet the standard against which I am required to assess whether there should be a reduction in tariff.
30. Though the sentence initially passed was in no sense excessive, and was upheld by the Court of Appeal, having considered all the material put before me, including that which the Applicant himself has said in a carefully written letter, I have concluded that it would be appropriate to recommend a reduction in the minimum term to be served before the Applicant may be considered by the Parole Board for release from the present 14 years (less 385 days) by one year. I recommend it be reassessed as 13 years less 385 days. It of course remains the case that he will not be released at the expiry of that term unless and until the Parole Board concludes that it is appropriate.