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

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 November 2005

Mr. Justice Jack :

1. This is an application by Steven James made under paragraph 3 of Schedule 22 of the Criminal Justice Act 2003. It is that the court order the early release provisions apply to him as soon as he has served the part of the sentence to be specified in the order. The effect is that when the specified part of the sentence has been served he is eligible for release on licence if the Parole Board so directs. It is commonly called 'the minimum term'.
2. On 22 March 1994 the applicant was sentenced to custody for life under section 8(2) of the Criminal Justice Act 1982 for the murder of one, Reed. His co-defendants, Andrew Thomas and Shane Hutchinson, were also convicted of the murder. The fourth defendant, Michael Mundell, was acquitted of the murder but convicted of manslaughter. The applicant, Thomas and Hutchinson were also convicted of assault causing grievous bodily harm with intent on a man named Tull, and each received a sentence of 8 years. Mundell was convicted assault on Tull causing grievous bodily harm. The attacks took place on 11 June 1993 when the applicant was 18 years and 10 months. He was 19 when sentenced.
3. The recommendation of the trial judge, Scott Baker J, was that Thomas should serve a minimum term of 16 years, and the applicant and Hutchinson should serve minimum terms of 12 years, before being considered for release on licence. The comment of Lord Taylor CJ was: "Before reading the trial judge's recommendations I had thought 16, 13 and 13 years respectively. I see no reason to doubt the propriety of his recommendations. He heard the case.". The period set by the Home Secretary in a letter of 1 December 1995 was 13 years. The letter stated:

"The Home Secretary has given careful consideration to the facts of the case, the nature of the offence, the comments of the trial judge, and to your representations. In light of this consideration he set the tariff at 13 years in line with the Lord Chief Justice's recommendation." I do not consider that Lord Taylor did recommend a period of 13 years. 13 years was his first thought, but, having seen the trial judge's recommendation of 12 years, he adopted it, remarking 'He heard the case.' It was, of course, open to the Secretary of State to fix the tariff at 13 years and thereby to adopt the initial view of Lord Taylor.

4. I have received written representations on behalf of the applicant in support of the application. I have not been asked to hold an oral hearing and do not consider one necessary.
5. In dealing with the application I must have regard to the matters set out in paragraph 4 of Schedule 22. For present purposes these can be summarised as:

(1) the seriousness of the offence or of the combination of the offence and any associated offence: paragraph 4(1)(a);

(2) the length of any period in custody prior to sentence: paragraph 4(1)(b);

(3) the length of period notified by the Secretary of State: paragraph 4(1)(c).

Paragraph 4(2) provides that in relation to (1) I must have regard to (a) "the general principles set out in Schedule 21" of the Act and (b) to the recommendations of the trial judge and the Lord Chief Justice as to the minimum term. Paragraph 3(1)(a) provides that the term specified in my order may not be greater than the term notified by the Secretary of State.

6. Schedule 21 provides three starting points for adults, a whole life order (paragraph 4), 30 years (paragraph 5) and 15 years (paragraph 6). In respect of an offender under 18 when he committed the offence, the starting point is 12 years (paragraph 7). The Schedule provides for the court to take into account aggravating and mitigating factors – paragraphs 8 to 11. Paragraph 12 shows that section 143(2) – previous convictions, section 143(3) – committed on bail, and section 144 – guilty plea, are applicable in fixing the minimum term.
7. The primary application of Schedule 21 is in the fixing of minimum terms under section 269 of the Act, Section 269 applies to life sentences fixed by law passed after 18 December 2003. Section 269(5) provides that in considering the seriousness of the offence the court must have regard to "the general principles set out in Schedule 21". That is in the same terms as paragraph 4(2)(a) of Schedule 22. There cannot therefore be some provisions in Schedule 21 which are general principles and some which are not : in particular the starting points are "general principles".
8. The conduct of an applicant after sentence is not referred to in Schedule 22 as a matter to be taken into account. It was, however, something which previously the Secretary of State might take into account in reducing a minimum term which he had set earlier. I refer to the statement of Mr. Morris, the Head of the Tariff Section in the Lifer Unit, which is quoted in the judgment of Rose L.J., Vice President, in Cole, Rowland and Hawkes [2003] EWHC Admin 1789. What was required was "exceptional progress". Paragraphs 8 , 9 and 10 of the statement read:

"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.

9. Twenty-seven prisoners have had their tariffs reduced on the grounds of exceptional circumstances since the policy was announced in November 1997. Out of these, 23 were reduced on the grounds of exceptional progress in prison (17 by one year and 6 by two years). Four were reduced on account of other exceptional circumstances (three by one year and one by two years).

10. 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."

In the course of his judgment Rose L. J. stated:

"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.

89. The Secretary of State's express acceptance of this is to be found, as I have said, in paragraph 8 of Mr Morris' statement. It is unnecessary, for the purposes of this judgment, and it would be inappropriate, to explore the various avenues at common law, and under the Convention, where support for legal challenge to any other approach might readily be found." It is appropriate to apply the former practice of the Home Secretary to reduce a minimum term by reason of exceptional circumstances, which may include exceptional progress following sentence where it has occurred.

9. When a judge passes sentence following a trial it is for him to determine the circumstances relating to the offence in so far as they have not been decided by the jury's verdict. He does so on the basis of the evidence that he has heard and applies the criminal standard of proof. In considering what the minimum term should be pursuant to paragraph 3 of Schedule 22 I should accept the trial judge's conclusions as to those circumstances. He heard the evidence : I did not. His findings form the basis for sentence.
10. Facts relating to the murder of Reed and the assault on Tull were set out by the trial judge in his report to the Home Secretary as follows :

"Shortly before midnight on Friday 11th June 1992 Messrs Reed and Tull, both in their 40's were returning home on foot from a local club. A gang of youths, including the four defendants, was creating a lot of noise and destroying 2 traffic bollards. Reed and Tull thought they had managed to avoid the youths but passed Mundell and James on a pedestrian crossing. Mundell and James tried to pick an argument with them and, during the course of it, Tull suggested the youths should give the neighbourhood (the Ely district of Cardiff) a rest from their vandalism. Mundell and James thereupon called back the rest of the gang, who numbered about 7 and were 30 yards or so up the road. Those 7 who included James and Thomas came running back to the cry of "fight". Hutchinson rugby tackled Tull to the ground and he, Mundell and James then kicked him repeatedly. Some of the kicks were to the head and Tull was rendered unconscious. Thomas took a flying kick to the head of Reed which knocked him to the ground. He then stamped on his head many times before finally stamping once on Tull's head. Other members of the gang were involved, but it is impossible to say how many or to what extent. The pathologist identified 55 separate injuries to Reed. The worst were to the face and head. Death was caused by blunt injury to the face. Tull suffered broken ribs and fractured cheek as well as extensive bruising. He was in hospital for 6 days and suffered from dizziness and persistent headaches.

There was evidence that Mundell left separately from the others and before the end of the attack.

The Crown's case was that there was a joint enterprise to attack both Reed and Tull. Thomas had been drinking (as had the others) and was probably under the influence of cannabis. He remained (unlike the others) extremely aggressive after the incident, showing some pride in what the had done and wanting to go back for more.

The worst offender, despite his age, was Thomas. The extent of his aggression was significantly worse that Hutchinson and James. Mundell was acquitted of the more serious charge on the basis that he did not have an intent to cause really serious injury."

11. The trial judge's comments on the case were as follows:

"This case attracted a great deal of media interest both locally and nationally. The Ely estate in Cardiff has a record of mindless violence by gangs of youths. There were riots there in 1992. There is a strong public feeling that despite their youth, these defendants should spend a long time in custody. I regard Thomas as a very dangerous young man, particularly when he has had any drink or drugs. I think he will remain so unless there is a dramatic change in his character. I regard Hutchinson and James as continuing dangers but less so than Thomas. All 3 have convictions for violence."

12. The applicant's previous convictions for violence were that on 30 March 1992 he had been fined and bound over for a year for affray, and on 8 May 1992 for violent disorder he had been sentenced to custody for 9 months. He also had three convictions for theft or attempted theft.
13. I do not consider that the case falls within paragraphs 4 or 5 of Schedule 21. The starting point in determining the minimum term is therefore 15 years.
14. I do not consider that any of the aggravating features listed in paragraph 10 are the following which are present here.
15. Among the mitigating features listed in paragraph 11 are :

(a) "an intention to cause serious bodily harm rather than to kill".

In a vicious gang attack of the nature here, it can count for little that a participant did not intend to kill.

(b) "lack of premeditation"

There was no actual premeditation here, but the gang were looking for trouble, vandalising bollards, and ready to attack any one who gave them an excuse.

(g) "the age of the offender"

The applicant was 18 years and 10 months.

I consider that it is a mitigating factor that Thomas was carried out the worst of the violence on Reed.

16. The most important feature relating to the offence is the appellant's age at the time of it. Had he been 11 months younger, the statutory maximum if he had fallen to be sentenced in accordance with schedule 21 would have been 12 years.
17. I am also asked to take into account the following:

(a) In June 1999 the applicant asked the Secretary of State to reconsider his tariff in the light of the progress which he had made in prison. The Secretary of State declined to make a reduction by letter of 13 July 2000. The reasons given by the Secretary of State were :

"The Secretary of State accepts that, after an indifferent start to your sentence, your performance is good. Although, disappointingly, you continue to minimise your part in the attack on the victims, you have willingly participated in offence-related courses, including drugs awareness, anger management and alcohol education. You have worked well in Gartree in areas like the kitchen and your disciplinary record in the prison is good. If maintained, your performance/progress will stand you in good stead when the Parole Board comes to consider your case. However, the Secretary of State has not been persuaded that the good progress you have made stands out conspicuously from the good progress expected of all mandatory life-sentence prisoners. He does not consider that you have made exceptional progress or that your tariff of 13 years should be reduced on this ground."

(b) The letter also stated :

"You may make representations against your tariff at any time if you have new relevant information which was not before the Secretary of State when the tariff was set, or if you consider that there is an exceptional circumstance or that you have made exceptional progress or that there has been a significant alteration in your maturity of that your personal development would be seriously prejudiced by detention to expiry of tariff."

(c) In April 2002 the applicant made a further such application, setting out his ongoing achievements while in prison. His Review Board Summary of 27 February 2002 included 'Mr James needs once again, in view of his outstanding progress, to reinvestigate the possibility of reduction in tariff. No outstanding offending behaviour work as this has been comprehensively addressed.' The achievements set out did not, however, include 'some extra element to show that the lifer had done good works for the benefit of others'- paragraph 10 of the statement quoted in paragraph 8 above. But that may not be an absolute requirement: I refer to the terms of the letter of 13 July 2000.

(d) The application made in April 2002 was never determined by the Secretary of State by reason of the decision of the House of Lords in R (Anderson) v Secretary of State [2003] 1 AC 837.

(e) The applicant is now held in open conditions at HMP Prescoed and is in full time employment with a company as a warehouse assistant.

18. I consider that, in all the circumstances taking particular account of the appellant's age at the time of the murder, of the fact that the Secretary of State may have misunderstood the recommendation of the Lord Chief Justice in fixing the minimum term at 13 years, and the appellant's progress to which I have referred, the minimum term should be fixed at 12 years.
19. That period must be reduced to take account of the period which the applicant spent in custody prior to sentence, namely 9 months and 9 days. It is therefore ordered that the early release provisions apply to the applicant when he had served 11 years, 2 months and 21 days commencing with his sentence on 22 March 1994. So they will apply at the date of delivery of this decision, namely 11 November 2005.
20. The applicant's submissions state that the Secretary of State having originally set the tariff for Hutchinson at 13 years later reduced it to 11 years. I have no information as to why this occurred. I have taken no account of it.