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
		28 November 2005

Mr. Justice Jack :

1. This is an application by Adrian Pugh 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. The applicant was sentenced to life imprisonment on 9 November 2000 for the murder of John Smith following his trial with his co-defendants, Robert Holden and Daniel Matthews, who were acquitted of murder. The applicant was also convicted of kidnap and false imprisonment. He was sentenced to 10 years concurrent on each. The recommendation of the trial judge (His Honour Judge Beaumont Q.C.) was that the applicant should serve 22 years before he should be eligible to be released on licence. The recommendation of the Lord Chief Justice, Lord Woolf, was that he should serve 18 years. That was the figure set by the Secretary of State by letter dated 7 August 2001.
3. I have received written representations on behalf of the applicant in support of the application. I have also received a request that I hold an oral hearing.
4. Paragraph 11(1) of Schedule 22 to the Act provides:

11(1) An application under paragraph 3 or a reference under paragraph 6 is to be determined by a single judge of the High Court without an oral hearing

In R (Hammond) v Secretary of State [2004] EWHC Admin 2753 the Divisional Court had to consider the issue of oral hearings and paragraph 11 in the context of Article 6 of the European Convention on Human Rights. In the course of its judgment the court stated as follows:

"38. In our view, a High Court Judge will, in the majority of cases, probably the overwhelming majority, where either an application is made under paragraph 3 by a defendant whose tariff has been fixed or where a reference is made under paragraph 6 for the minimum term to be fixed, be able to determine the matter in a way compatible with Article 6(1) without the need for an oral hearing during the proceedings before him.

…………..

42. However, as is accepted on behalf of the Home Secretary, there will be rare cases where oral representations may be required and even rarer cases where oral evidence may be required. It will be for the Judge in each case to decide whether such evidence or such representations are required, depending on a close examination of the issue or issues that have to be decided by him in the proceedings, the full written materials available and submitted and the nature of the oral hearing required.

i) If the defendant who has made an application under paragraph 3 or whose case has been referred under paragraph 6 considers that oral evidence or oral representations are required in the specific circumstances of his case, then at the time he submits his full representations in relation to the merits of the reference under paragraph 6 or the merits of his application under paragraph 3, he should make a separate, but simultaneous, application to the Court in writing for a hearing, setting out precisely the reasons why oral evidence or oral representations are required in addition to the full written representations on the merits which have been submitted. …….

ii) The Judge will then determine whether an oral hearing is required. If he decides one is not required, then he will proceed to determine the application or reference on the basis of the written materials and representations as to the merits before him. His decision on the application or the reference can, with leave, be subject to an appeal to the Court of Appeal and the grounds of appeal can, if appropriate, seek to impugn the decision not to hold an oral hearing.

iii) There may be cases, in rare and unusual circumstances, where the Judge may decide that he requires an oral hearing; if so, he will notify the parties when he has considered the papers and an oral hearing will then take place."

5. I am asked to hold an oral hearing in the present application for the following reasons:

'1. The case involves complex issues given the applicant's maintenance of innocence and disputed facts in relation to the motive for the kidnapping and unlawful imprisonment.

2. Evidential reasons concerning:

1. Remorse of the applicant

2. Current medical prognosis.'

I will consider these in turn.

6. I am not concerned with whether the appellant can establish his innocence of the murder. He was convicted and his conviction has not been set aside on appeal. This application is not an occasion for the applicant to dispute his guilt. Nor is it appropriate on this application for me to examine the motive for the kidnapping and unlawful imprisonment. That was something on which the trial judge expressed a clear view. It is not a matter for me because, 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.
7. I should not hear evidence as to the applicant's remorse. I assume that what is referred to is his remorse in relation to the kidnapping and false imprisonment. (For he still denies the murder.) That is best established by the reports of those who have dealt with the applicant and prepared reports on him while he has been in custody. I would learn very little or nothing by hearing the appellant give evidence of such remorse on this application.
8. As to the applicant's current medical prognosis, I have been provided with letters from Dr Mungall and Dr Ramsundar dated 28 September 2004 and 3 March 2005. Dr Mungall is consultant general/respiratory physician at the Peterborough and Stamford Hospitals where the applicant has been treated, and Dr Ramsundar is his registrar. Dr Mungall has not seen the applicant. Dr Ramsundar saw him on one occasion as an out-patient. He has had no contact with the hospital since September 2004. The relevant complaint then was one of breathlessness. It appears that the applicant is a heavy smoker. Paragraph 12.4 of the written representations states that the applicant has suffered a deep vein thrombosis, has chronic obstructive airways disease, is severely restricted in mobility due to shortness of breath, and suffers 'constant mini strokes'. The representations dated 25 January 2005 also state that an application for consideration of release on compassionate grounds is pending. I have been provided with a progress report summary by the Life Manager, HM Prison Whitemoor, dated 8 March 2005. It concludes that there is no medical evidence or recommendation to support the application for a compassionate release : "in fact the Medical Officer concludes that Mr. Pugh's condition has improved and is continuing to improve." That is supported by a medical report dated 1 March 2005.
9. It is not necessary to have an oral hearing to consider medical evidence. That can be done by the provision of appropriate written reports. The letters I have are wholly inadequate material on which to form any view. If a life prisoner has a serious medical condition meriting his release earlier than would otherwise be appropriate, that is a matter which can best be considered by the Home Secretary on an application such as was pending here. The Home Secretary has medical records available to him and can procure any further reports thought necessary.
10. 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 offences associated with it: 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.

11. Schedule 21 provides three starting points for adults, a whole life order (paragraph 4), 30 years (paragraph 5) and 15 years (paragraph 6). It 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) – offence committed on bail, and section 144 – guilty plea, are applicable in fixing the minimum term.
12. 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".
13. The facts of the offences were set out by the trial judge in his report to the Home Secretary as follows:

"Late on Sunday 5th December or early 6th December 1999 John Cameron Smith, a 72 year old homosexual, living alone in Hastings, Sussex was kidnapped, taken by force to London where he was held captive in a flat in Islington. On Wednesday 8 December 1999 police officers forced entry into the flat and found his body inside a sleeping bag in the hall cupboard. He had been restrained, badly beaten and had died from asphyxia. In the period between his kidnap and the discovery of his body his car had been used, money withdrawn from his bank account and attempts made to buy goods with his credit cards. A cheque drawn on his bank account dated 6 December 1999 had been credited and specially cleared to an account opened by Pugh. The evidence indicated that Pugh was the prime mover in a systemic attempt to extract as much money as possible from a vulnerable target whom he knew of old from a prior homosexual relationship. The victim was subjected to gratuitous violence before death and, by inference, was killed to ensure his silence. Pugh had made an unsuccessful attempt the day before the kidnap to recruit a criminal acquaintance to what he described to him as "a tie up and baby-sitting". A source who was to tell the police that Pugh contacted him later to boast the he (Pugh) had made a considerable amount of money out of it. In the event Pugh used 2 young men both of whom were arrested and jointly charged on counts 1, 2 and 3. Daniel Wallace, aged 15, who was severed pursuant to an application made under the Practice Direction – Trial of Children and Young Persons in the Crown Court issued on 16th February 2000 and who subsequently pleaded guilty to kidnap and false imprisonment, no evidence being offered by the Crown on Murder. Robert Holden, aged 20, who was tried with Pugh and acquitted of Kidnap and Murder, but convicted of False Imprisonment."

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

"This was a killing in the course of a premeditated and ruthlessly executed series of crimes committed for financial gain. It involved two much younger persons who, despite their acquittals of murder, face substantial custodial sentences for the parts they played, subordinate as they were."

15. It appears from the applicant's own written representations that he had a number of previous convictions and had served at least one prison sentence – from which he was released in August 1999. I have not seen his antecedents. It does not, however, appear that the previous offending lengthened the terms recommended.
16. The case does not fall within paragraph 4 of Schedule 21 – exceptionally high seriousness – whole life order. It is possible that the killing is to be described as 'a murder done for gain (such as a murder done in the course of furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of death)' – paragraph 5(2) of the Schedule. If so, it would normally fall with paragraph 5 as being of particularly high seriousness and the starting point for the minimum term would be 30 years. As I cannot increase the period from that notified by the Secretary of State, namely 18 years, I should put aside that possibility, and should approach the application on the basis that the starting point for the minimum period under Schedule 21 is the 15 year period provided by paragraph 6 and then consider the aggravating and mitigating features.
17. The following among the aggravating features listed in paragraph 10 of Schedule 21 are relevant here:

i) There was significant planning and premeditation – paragraph 10(a);

ii) The victim was particularly vulnerable by reason of his age – paragraph 10(b);

iii) Mental and physical suffering was inflicted on the victim before his death during the period of his kidnap and false imprisonment – paragraph 10(c). Mr Smith had been badly beaten.

18. I do not consider that any of the mitigating features referred to in paragraph 11 of Schedule 21 are present. It is suggested that mitigation is to be found in the fact that Mr Smith had sexually abused the applicant many years before when he was in his teens. The applicant avers that the kidnapping was in effect a revenge for that and he has also said that, although denying he took part in the killing as it turned out, he had intended to kill the deceased. That is an explanation for what occurred rather than mitigation.
19. The serious aggravating features which exist in this case would not justify reducing the minimum term below the 18 years previously set. That is to say that they require at least three years to be added to the starting point of 15 years.
20. It is submitted that a reduction in the minimum term should be made to reflect his conduct while he has been in prison. I refer to the judgment in Cole, Rowland and Hawkes [2003] EWHC admin 1789, where the court considered the previous practice of the Home Secretary to take exceptional progress or exceptional circumstances into account to effect a reduction in a previously set tariff. The court concluded that exceptional progress in prison should be taken into account on applications such as the present.
21. In order to consider this submission I asked to be provided with reports from the Prison Service covering any matters relied on. Although the applicant trained as a listener at a previous establishment he has not acted as a listener at Whitemoor (where he arrived on 7 September 2001). He is however often approached for advice by fellow inmates in Whitemoor, which he gives. The reports are otherwise mixed, that is to say, they observe both satisfactory and unsatisfactory aspects to the applicant's behaviour since at Whitemoor. There is nothing which would justify a reduction in the minimum term on the sort of grounds considered in Cole.
22. I conclude that the minimum term should be 18 years. Taking into account the period of 10 months 27 days served by the applicant prior to sentence on remand, it is ordered that the early release provisions apply to him when he has served until 12 December 2017.