England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th May 2005

Mrs Justice Gloster, DBE:


 


1. These are three related applications, pursuant to paragraph 3 of Schedule 22 to the Criminal Justice Act 2003 ("the 2003 Act") for a review of the respective terms of imprisonment notified to the applicants by the Home Secretary as the minimum terms which they must serve before release on licence. Each of the applicants is currently serving a sentence of mandatory life imprisonment for murder.
2. The relevant facts for the purposes of these applications may be briefly stated as follows. In February 1998, after a six week trial in the Crown Court at Stafford before His Honour Judge Clive Tayler QC, the applicants, Andrew David Middleton, David Peter Coulson and Craig John Bauer were unanimously convicted of murder. The previous day Bauer was convicted on Count 2, violent disorder. Coulson admitted that offence during the trial and was found guilty on direction. Middleton pleaded guilty to Count 2 at the commencement of the trial. They were sentenced to life imprisonment for murder and each was sentenced to 3 years' imprisonment to run concurrently for violent disorder. Middleton and Bauer appealed against their convictions for murder. Middleton and Bauer's appeals against conviction were dismissed and Coulson's application for leave to do so was also dismissed. A further man, Philip Mark Smith was also convicted of murder and violent disorder, but his appeal against conviction on both counts was allowed.
3. The indictment charged 10 men in all with violent disorder. All of them either, by changes of plea, or by verdict, were convicted of that offence. Eight of those including the three applicants and Smith were further charged with murder. The other four men namely Lewis, Burton, Joynson and Hallam were acquitted. At an early stage of the trial Coulson indicated that he was prepared to plead guilty to manslaughter but the Crown did not accept this. The two Defendants who only faced the violent disorder count were called Malam and Plant.
4. The case arose out of fighting which took place in the early hours of the 20th of December 1996 in Broad Street, Hanley. Earlier all the Defendants had visited a discotheque called The Void and, when that establishment closed at about 2am, they arranged to meet at the Sunshine Cafe in Morley Street, Hanley which is a street running off Broad Street. Most of them met there and went into the cafe but Middleton, Lewis and Hallam went up Broad Street to the Dixy Fried Chicken Shop to buy something to eat. In that shop they became involved in a fight with some Asian customers. Middleton and Lewis sustained bleeding injuries during this fighting. Middleton, Lewis and Hallam then went to the Sunshine Cafe. Middleton and Lewis were not admitted to those premises because it was obvious they had been fighting but Hallam went inside and told the remaining accused that he, Middleton and Lewis had been attacked by Asians in Broad Street and that Middleton and Lewis had been injured. First Middleton and two other men returned to Broad Street where a number of Asian taxi drivers were parked. An Asian passenger in a taxi was punched. One of the drivers struck out with a crook lock hitting Middleton. Then a larger group of young men, including Smith, Bauer and Coulson, left the Sunshine Cafe and went on to Broad Street. A number of fights and scuffles took place as other Asians emerged from restaurants armed with cooking utensils as weapons. The deceased, Delroy Nedrick, who was Afro-Caribbean, came out of the Indian Cafe towards the top of Broad Street on the left hand side going north. At first he tried to restore order by calling on those fighting to stop and go away. Middleton however, who was in the thick of the fighting, angrily asked Nedrick what had it got to do with him. A fight then ensued between Middleton and Nedrick in the middle of the road and Nedrick threw Middleton to the ground twice. By this time they were further down Broad Street nearer to Morley Street and Nedrick crossed over to the pavement near to the Home Aids Services shop on the easterly side of Broad Street. Middleton followed him and at this point, a number of the Defendants followed him intent, according to the prosecution, on taking revenge for Nedrick's attack on Middleton. Who it was who crossed over and went to Nedrick on the pavement was a crucial question at the trial and was the subject of considerable eye witness evidence. On his own admission, Coulson was one of the members of the group confronting the deceased, as was Bauer, as the jury found. The events which followed led directly to Nedrick's death. The prosecution case was that the Defendant group attacked Nedrick with fist and by kicks. Not everyone present was engaged in physical fighting but all, said the prosecution, were encouraging the attack on Nedrick. A witness called Fenton Gray gave evidence that four or five men were standing around where Nedrick was. Two or three were certainly fighting Nedrick, punching and kicking him. Nedrick at that point was still standing. There is no dispute that, at that stage, Coulson ran at Nedrick from his side and delivered a punch of considerable force to his head or face which knocked Nedrick backwards off his feet. He fell striking his head very hard against the pavement or the kerb edge and suffered the head injury which caused his death. At that point, whilst he was prone, helpless and probably unconscious, some of the group began to kick him. The consultant pathologist called by the Crown, Dr French, said in evidence that, from the moment his head struck the ground, the deceased's life was doomed; although he insisted that the subsequent kicks delivered to the deceased made some contribution to his death.
5. Numerous eye-witnesses were called. Their evidence as to the number of persons who kicked the deceased varied from one to 20. The consultant pathologist said that an estimate of the upper limit of the number of kicks was between four and six.
6. The attack on Nedrick ceased at about the time police officers arrived when the applicants left the scene. Nedrick was taken immediately to hospital, and despite attempts to resuscitate him, these were not successful and at 4am he was pronounced dead.
7. Doctor French found injuries to the brain typical of those caused when a person falls and strikes their head against a hard surface. There was a deep split to the liver. There were other injuries and bruises which indicated kicks or blows but which were not themselves capable of causing death. His opinion was that Nedrick died as a result of lack of immediate attention to a bruising injury to the brain and to the lacerated liver. Doctor French accepted that the deceased's injuries did not support any proposition that he had been repeatedly stamped on and kicked by a large number of people. He identified three serious injuries: one to the back of the head, with the associated contre coup injury to the brain caused by the fall; two, the abdominal injury, namely the split liver with associated damage to the colon and the peritoneum, consistent with being caused by one stamp or kick; and three, bruising to the left temporalis muscle (under the scalp just above the ear) which was consistent with a punch or a kick. Doctor French said he could not tell from the pathological evidence how many people kicked the deceased nor how many times. But he put an upper limit of not more than three kicks in the area of the left temporalis muscle, and not more than two, or three, in the region of the abdomen.
8. In his reports to the Home Secretary, the trial judge recommended a period "in the region of 10 to 12 years" as the minimum term which each of the applicants should serve. In each case the Lord Chief Justice, Lord Bingham, giving his comments, stated: "I agree with the judge. I think 10 years would probably be enough". In each case the Home Secretary specified 12 years as the minimum term of imprisonment that each man should serve.
9. In reviewing the notified minimum term, I must have regard to the seriousness of the offence, or of the combination of the offence and the offences associated with it; here the associated offence was violent disorder; see paragraph 4(1) of Schedule 22. In so doing, I must further have regard to the general principles set out in Schedule 21 of the 2003 Act and the recommendations made to the Secretary of State by the trial judge and the Lord Chief Justice.
10. I turn now to deal with the individual applicants.

Andrew David Middleton

11. In relation to this applicant, the trial judge reported as follows:

"As I have indicated earlier, this Defendant, as with others, was clearly affected by alcohol, and he behaved in a manner which appeared to be uncharacteristic of a young man from a good home background, with no previous convictions for violence and a good work record. He was on this occasion, however, on the totality of the evidence, in the forefront of the violent activity, although the blow which cause the most serious injury was delivered by the Defendant Coulson. The serious nature of the offence is that it evolved out of group violence in a public place and that the Deceased was substantially outnumbered and was subjected to a vicious attack. It is difficult to assess to what extent there was a racist element in this case. The original incident in the Dixy, in which the Defendants Middleton and Lewis were attacked by a group of young Asian men, arose in some unexplained way from the Defendant Middleton upbraiding an Afro-Caribbean man because of his behaviour towards a white young woman. The Defendant Lewis is of mixed ethnic origins. In the violence which later ensued there were certainly some racist abuse shouted and the Deceased was subjected to such abuse. All of the Defendants left the scene at the time the police started to arrive.

I believe that Middleton, having no previous convictions for violence, will have been taught a salutary lesson by his conviction and sentence. I do not believe that there is any substantial likelihood of his committing serious violence in the future.

After conviction it was urged by Counsel on behalf of Middleton that the attack was spontaneous and not premeditated, that the attack was over very quickly and that no weapons had been used.

…

This man took a leading part in the events which lead to the tragic death of the Deceased. Taking into account all of the matters set out in the Reports, I would suggest a period in the region of 10 to 12 years to meet the requirements of retribution and general deterrence for the offence."

As I have already noted, the Lord Chief Justice said that, in his view, 10 years was probably the right length of minimum term.

12. First, I have regard to the seriousness of the offence, taking into account the principles set out in Schedule 21, namely the principles that are to be applied to offenders sentenced after 18 December 2003. If Middleton had been sentenced after this date, then the appropriate starting point for determining the minimum term for this type of offence (subject to considerations so as to avoid any breach of the principle of non-retroactivity) would have been 15 years under paragraph 6 of Schedule 21.
13. Under section 21 I have then to take into account any aggravating or mitigating factors. In this context I do not characterise this murder as having racially aggravating features and I do not read the report of the trial judge as so stating. He said that it was "difficult to assess to what extent there was a racist element in this case". In those circumstances, it would be wrong to regard this offence as "racially aggravated" within the meaning of paragraph 5(2)(g) of Schedule 21.
14. In relation to this applicant, who was 22 at the time of the offence, I take into account the following mitigating factors under paragraph 11: the fact that there was no intention or pre-meditation on Middleton's part to kill the deceased; that he was himself the subject of an attack by the deceased (and was himself knocked to the ground by the deceased on two occasions) and therefore to an extent provoked; and that no weapons were used.
15. I also take into account the applicant's age at the time of the offence and his very limited criminal record, with no relevant previous convictions. I take into account the recommendations of the trial judge and, in particular, that of the Lord Chief Justice.
16. I have also read all the material submitted with the application for a review, including letters from him and from those supervising his conduct in prison. These demonstrate not only what I find to be the genuine and deep remorse shown by this applicant but also the exceptional progress that he has made whilst in prison to address his defects, in particular anger management. He has been an exemplary inmate and has one of the most trusted employments in the prison. R (Cole & Others) -v- Secretary of State for the Home Department [2003] EWHC 1789 (Admin) shows that such matters can be taken into account in reviewing the minimum term.
17. The Secretary of State, in imposing a tariff of 12 years stated as follows:

"The Secretary of State has taken into consideration that you have no previous convictions and that you had yourself been twice attacked in the events before the killing.

The Secretary of State does not accept that a tariff of 10 years which he takes as the Lord Chief Justice's recommendation is sufficient to satisfy the requirements of retribution and deterrence for your offence. He has had regard to the fact that you '… took a leading part in the events which led to the tragic death of the deceased'. He has also attached weight to the fact that a man who had at first sought to calm the situation and bring an end to the conflict, was himself killed as he backed away, by a group who could themselves have backed away but who instead chose to attack with brutal violence in a public place."

18. I have taken into consideration the views expressed by the Secretary of State. I have also read, with particular care, the victim impact statement provided by the partner of the deceased, and the mother of his two children, where she sets out the continued consequences of the murder upon her and her children.
19. In my judgment, taking into account all relevant considerations the appropriate minimum term to impose on the applicant is 10 years as recommended by the Lord Chief Justice, less the 14 months 2 days which he spent in custody on remand. This is the minimum term suggested as appropriate in the submissions put forward on the applicant's behalf.
20. My reasons for changing the tariff notified by the Secretary of State are as follows:

i) that I do not consider that the requirements of retribution and deterrence justify a 12 year minimum term as opposed to 10 years;

ii) that, albeit that the applicant took a leading part in the events of that tragic night, there was clear evidence that there had been fighting between both groups and that the deceased himself had attacked the applicant and knocked him down;

iii) that there was no intention to kill on the part of any member of the group;

iv) that the Secretary of State did not have available all the information before the court as to the exceptional progress of the applicant in prison.

David Peter Coulson

21. In relation to this applicant, the trial judge reported as follows:

"As I have indicated earlier, this Defendant, as with others, was clearly affected by alcohol. He has one previous Court appearance for violence, when in the Stoke-on-Trent Magistrates' Court in 1995 he was dealt with for a s4 Public Order Act offence for which he received no separate penalty, and two offences of Assault on Police, for which he was sentenced to 200 hours Community Service. There were no serious acts of violence, although he was ordered to pay £100 Compensation to each officer. The serious nature of the offence is that it evolved out of group violence in a public place and that the Deceased was substantially outnumbered and was subjected to a vicious attack. It is difficult to assess to what extent there was a racist element in this case. The original incident in the Dixy, in which the Defendants Middleton and Lewis were attacked by a group of young Asian men, arose in some unexplained way from the Defendant Middleton upbraiding an Afro-Caribbean man because of his behaviour towards a white young woman. The Defendant Lewis is of mixed ethnic origins. In the violence which later ensued there were certainly some racist abuse shouted and the Deceased was subjected to such abuse. All of the Defendants left the scene at the time the police started to arrive.

Although this Defendant finally accepted at trial that he had punched the Deceased, when interviewed by the police he told numerous lies, even though he knew that the evidence of some witnesses, who were mistaken, were leading the police to believe that his Co-Defendant Middleton had punched the Deceased. He had also disposed of a white jersey, which he was wearing on the night in question. It was only after a witness for the Prosecution, who knew him, gave evidence that he was the puncher and the Prosecution were able to produce a still picture from the Video Camera at a night club that he had visited before the incident showing the clothing he was wearing, that he accepted his responsibility for the punching.

Although he has no serious record of violence, he did play a significant part in the events of that night and that, together with the attitude he adopted towards his responsibility for the Deceased's death, does raise concern as to whether he may re-offend in a serious manner in the future.

After conviction it was urged by Counsel on his behalf that he was not a danger to the public and that the offence resulted from excessive consumption of alcohol and resultant unthinking behaviour. I was asked to forward with my Report the documents enclosed therewith.

…

The Defendant struck the blow which caused the Deceased to fall and sustain his head injury. On the Jury's Verdicts in respect of the other three Defendants convicted of Murder, they must have decided that this blow was struck in pursuance of a Joint Enterprise at least to cause the Deceased grievous bodily harm. Although the evidence was not all one way, there was a substantial body of evidence that the puncher was also a kicker. Taking into account all of the matters set out in this Report, I would suggest a period in the region of 10 to 12 years to meet the requirements of retribution and general deterrence for the offence."

As I have already said, the Lord Chief Justice said that in his view 10 years was probably the right length of minimum term for this applicant.

22. I turn then to consider the seriousness of the offences and the combined offence of violent disorder and the general principles set out in Schedule 21. As in the case of Middleton, the appropriate starting point for determining the minimum term in this case would have been fifteen years under paragraph 6 of Schedule 21. As with Middleton, in considering the seriousness of the offence I do not regard this offence as being racially aggravated within the description in paragraph 5(2)(g). In relation to this applicant, who was 21 at the date of the offence, I also take into account as mitigating factors under paragraph 11 that there was no intention or premeditation on his part to kill the deceased; that he admitted, albeit not immediately, that he was the attacking party who punched the deceased so that he fell and struck his head on the pavement; and that he accepted, at the very least, that he was guilty of manslaughter. However, as the Court of Appeal made clear, there was abundant evidence against the applicant that he not only punched the deceased, but was also someone who had kicked him when he was down on the ground. As with Middleton, I take into account the fact that no weapons were used and that he was a young man of just 21 at the time the offence was committed. I also take into account the fact that he tendered a plea of guilty to manslaughter which was not accepted by the Prosecution approximately one week into trial.
23. I take into account the recommendations of the trial judge and in particular the Lord Chief Justice. I have also read the material submitted with the application for a review, including letters from him and reports from those supervising his conduct in prison. These materials demonstrate not only the genuine and deep remorse shown by this applicant, but also the exceptional progress that he has made towards understanding and appreciating the risk factors that contributed to his commission of the offence and also his success in tackling his prior disorganised lifestyle, his drugs and alcohol misuse and his violent tendencies. It is clear from those materials that the applicant is extremely open when discussing his offence and has addressed all aspects of his offending behaviour. It is clear that he fully accepts his murder conviction and the resulting sentence. He has now been transferred to less secure conditions at a Category C establishment. This applicant too has been an exemplary inmate.
24. The Secretary of State, in imposing a tariff of 12 years stated as follows:

"The Secretary of State has not attached weight to your previous convictions.

The Secretary of State does not accept that a tariff of 10 years which he takes as the Lord Chief Justice's recommendation is sufficient to satisfy the requirements of retribution and deterrence for your offence. He has had regard to the fact that you played a leading part in the events of that night, that you delivered what proved to be the fatal blow and to the trial judge's comment that on the balance of the evidence you are also one of those who kicked the victim. He has noted the trial judge's view that the jury must have convicted you of murder on the basis that you punched the victim in pursuance of a joint enterprise to cause grievous bodily harm. He has also attached weight to the fact that a man who had at first sought to calm the situation and bring an end to the conflict, was himself killed as he backed away, by a group who could themselves have backed away but who instead chose to attack with brutal violence in a public place."

25. I have taken into consideration the views expressed by the Secretary of State. In connection with this application, I have also given careful consideration to maters set out in the victim impact statement. In my judgment, taking into account all relevant considerations, the appropriate term to impose on this applicant to serve is 10 years as recommended by the Lord Chief Justice, less the two months 21 days that the applicant spent on remand.
26. My reasons for changing the tariff notified by the Secretary of State are:

i) that I do not consider that the requirements of retribution and deterrence justify a 12 year minimum term as opposed to the 10 years;

ii) that, albeit that the applicant took a leading part in the events of that tragic night, the evidence, as appears from the Court of Appeal's decision, is that there were others punching and kicking the deceased, apart from the applicant, and it was his punch that fortuitously knocked the deceased to the ground;

iii) there was no intention to kill on the part of the applicant or any member of the group.;

iv) the Secretary of State did not have available to him all the information before this court as to the exceptional progress made in prison by the applicant.

Craig John Bauer

27. In relation to this applicant, the trial judge reported:

"As I have indicated earlier, this Defendant, as with others, was clearly affected by alcohol. The Defendant has a previous conviction of Violent Disorder at the Nottingham Crown Court on 23 October 1995, his sentence on appeal being reduced from 15 months to 12 months. In that case this Defendant and five others, including his Co-Defendant Cal Lewis who was acquitted of Murder, were involved in a violent incident both inside and outside a night club. The injured man was also an aggressor, but he ended up on the ground being kicked and stamped upon, as happened to the Deceased in this case.

The serious nature of the offence is that it evolved out of group violence in a public place and that the Deceased was substantially outnumbered and was subjected to a vicious attack. It is difficult to assess to what extent there was a racist element in this case. The original incident in the Dixy, in which the Defendants Middleton and Lewis were attacked by a group of young Asian men, arose in some unexplained way from the Defendant Middleton upbraiding an Afro-Caribbean man because of his behaviour towards a white young woman. The Defendant Lewis is of mixed ethnic origins. In the violence which later ensued there were certainly some racist abuse shouted and the Deceased was subjected to such abuse. All of the Defendants left the scene at the time the police started to arrive.

In view of the Jury's verdict, which involved a rejection of his Defence, it follows that they convicted him either because he participated directly in the final assaults or that he was a party to a Joint Enterprise to cause at least GBH to the Deceased. In view of his previous conviction, involving similar violence, it seems reasonable to supposed that he was likely to have been involved in the actual violence, and there was no evidence from the Defendant to the contrary.

In view of the previous conviction for quite serious violence, it seems to me that the Defendant must be regarded as someone who may well be involved in further violence in future.

After conviction, Counsel on his behalf stressed that he was not a man prone to violence and he laid stress upon the contents of a letter from Captain Jenkins enclosed herewith. His parents separated when he was a baby and he had a strong bond with his mother, his concerns now being entirely for her. On the night of the offence, he had no thoughts of violence and only became involved when told his friends had been attacked. He had taken drink during the course of a pleasant evening and got caught up in the violence which followed. There was no intention to kill and he became involved no more than a few minutes before the tragic death. I was informed that he had been profoundly affected by his conviction and felt remorse.

…

Taking into account all of the matters set out in this Report, I consider that a period in the region of 10 to 12 years to meet the requirements of retribution and general deterrence for the offence."

Again, the Lord Chief Justice said that in his view 10 years was probably the right length of minimum term for this applicant.

28. As with Middleton and Coulson, I have approached my review of the tariff set by the Secretary of State by consideration of the seriousness of the offence under Schedule 21. In relation to this applicant, who was 24 at the time of the offence, I take into account as mitigating factors under paragraph 11, the fact that there was no intention on his part to kill the deceased, that there was a lack of premeditation, that he was relatively young at the time of the offence and that no weapons were used.
29. The submissions to the Secretary of State dated 22 September 1999, which were prepared by leading counsel prior to the imposition of the tariff (but after the decision of the Court of Appeal), suggested that the applicant's tariff should be set lower than 10 years on the grounds that his participation in the offence was limited, that the trial judge was in error in making his recommendation on the basis that the offender had been "involved in the actual violence" upon the deceased, and that this error was not noticed by the Lord Chief Justice. It was thus submitted that it was necessary in fairness and justice to draw a distinction between his role and that of his co-accused and reflect that in their respective tariffs.
30. It was submitted that on the evidence the applicant did not set out that night with any intention of taking part in violence. That I accept, as indeed I have accepted in relation to the other applicants. I also accept that he was caught up in an incident which was not of his making. It was then submitted that there was no admissible or reliable evidence that the applicant had struck or kicked the deceased. Reliance was also placed in those submissions on the fact that Middleton was primarily responsible for fomenting the violence, in that he was party to the summoning of men from the café into the street and was directly responsible for involving the deceased by taking up his challenge to fight, and that Coulson had struck the fatal blow.
31. It is clear from the decision of the Court of Appeal on the applicant's appeal against conviction that, irrespective of whether the applicant was himself responsible for kicking, provided that he was part of a group which had intent to cause serious harm, he would be guilty of murder irrespective of whether he himself had punched or kicked the deceased. I accept that the judge left the case against the applicant to the jury on the widest possible basis, directing them, rightly, that they could convict him if they found he was party to a joint enterprise to assault the deceased realising that one of his co-venturers might cause grievous bodily harm within intent, even if he delivered no blow or kick himself. However, the applicant did not give evidence, and his primary case was that he was not involved with the group at all, which was clearly rejected by the jury.
32. I have given serious thought as to whether it is appropriate, in imposing the minimum term, to differentiate the position between this applicant on the one hand, and Middleton and Coulson on the other. In the event, I do not consider that it is appropriate to do so. Middleton had always asserted that he withdrew before the kicking began and even Coulson had no recollection of having kicked the deceased. There is also the question of the applicant's previous conviction for violence in a similar sort of incident. All in all, I do not consider it is appropriate to differentiate between this applicant and his co-accuseds. It was clear that the jury did conclude that a group of men, of which this applicant was part, attacked the deceased with fists and feet intending at the very least to cause the deceased serious harm.
33. However, as with the other two defendants, I take into account all the material submitted with the application for a review, including letters from him and reports from those supervising his conduct in prison. As with the other two applicants, these demonstrate not only what I find to be very genuine and deep remorse shown by the applicant, but also the exceptional progress that he has made whilst in prison to address his defects, which were the risk factors leading to this offence. He has clearly accepted full responsibility for the nature and circumstances of the tragic offence, and has made constructive use of his time in custody.
34. The Secretary of State in imposing a tariff of 12 years on the applicant stated as follows:

"The Secretary of State notes that your were convicted in February 1998 of murder and sentenced to life imprisonment. On 20 December 1996, one of your co-defendants, Andrew Middleton, and a man called Lewis were attacked in a fast food outlet by a group of young Asian men after Middleton had upbraided an Afro-Caribbean man about his conduct towards a young white woman. Along with others, you and your other co-defendant, David Coulson, went to Middleton's aid and a running fight ensured and involved attacks on other Asians in the street. The victim, also an Afro-Caribbean, who had not been involved in the earlier incident, came out into the street to calm the situation and separate to the two groups but lost his temper when Middleton objected to his intervention. The victim began inviting members of your group to fight him on a one-to-one basis and he twice threw Middleton to the ground. As the victim was backing away, David Coulson punched him in such a way that he fell and struck his head heavily on the pavement, injuring his brain. Members of your group rushed forward and kicked and stamped on his head and body.

The Secretary of State does not accept that a tariff of 10 years which he takes as the Lord Chief Justice's recommendation is sufficient to satisfy the requirements of retribution and deterrence for your offence. He has noted the trial judge's view that the jury found you guilty of murder on the basis that you participated in the final assault or that you were a party to a joint enterprise to cause grievous bodily harm. He has attached weight to the fact that a man who had at first sought to calm the situation and bring an end to the conflict, was himself killed as he backed away, by a group who could themselves have backed away but who instead chose to attack with brutal violence in a public place. He has had regard to your previous conviction for violent disorder from 1995 in which a man was kicked while on the ground."

I have taken into consideration the views expressed by the Secretary of State.

35. Likewise, in relation to the applicant, I have taken into account the views expressed in the victim impact statement. It is clear from the prison reports that the applicant has been involved in charitable fundraising efforts on behalf of the National Association for Victim Support Schemes which involved considerable dedication on his part. This was the Victim Support Transatlantic Rowing Challenge. Whilst I accept the submission that the trial judge was wrong to conclude "it seems reasonable to suppose that [the applicant] was likely to have been involved in the actual violence" simply by reference to the jury's verdict, I would not differentiate this applicant from his two co-accuseds in any way.
36. In my judgment taking all relevant considerations into account, the appropriate minimum term to impose on this applicant is likewise that he should serve 10 years as recommended by the Lord Chief Justice, less the 12 months two day period he spent in custody on remand. My reasons for changing the tariff notified by the Secretary of State are:

i) that I do not consider that the requirements of retribution and deterrence justify a 12 year minimum term as opposed to the 10 years;

ii) there was no intention to kill on the part of the applicant or any member of the group.;

iii) the Secretary of State did not have available to him all the information before this court as to the exceptional progress made in prison by the applicant.