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
		15th July 2010

The Hon. Mr. Justice King :

Decision

1. On the 30th of January 1997 at the Crown Court at Birmingham before Mr Justice Tucker this Applicant was convicted after trial of the murder of Naomi Louise Smith. The murder had been committed on the 14^th September 1995. At the time of the murder the applicant was some 19 years of age, his date of birth being 7^th May 1976. His victim was a 15½ year old schoolgirl.
2. On the 30th of January 1997 the Applicant was given a sentence of custody for life being the sentence fixed by law.
3. On the 31 of January 1997 the trial Judge made a recommendation that that the Applicant should serve a minimum term of 20 years before consideration for early release on licence. On the 6^th February 1997 the Lord Chief Justice, Lord Bingham, made a recommendation to the Home Secretary that the minimum term should be 17- 18 years.
4. On the 20^th May 1999 the Home Secretary notified the Applicant a minimum term of 18 years. The Home Secretary in notifying this term stated that he had given consideration to the circumstances of the offence and to the recommendations of the trial judge and the Lord Chief Justice.
5. This is now an application under section 276 and paragraph 3 of Schedule 22 of the Criminal Justice Act 2003 ("the Act") for a review of this minimum term. In terms it is an application for an order that the material statutory early release provisions of the Crime (Sentences) Act 1997 are to apply to the Applicant as soon as he has served the part specified in the order. Since this is a case in which an existing prisoner serving a mandatory life sentence passed before the commencement of the Act, has been notified by the Secretary of State of a minimum period which in the view of the Secretary of State should be served before the prisoner's release on licence, I am obliged to make such an order (see paragraph 3(1)(a) of Schedule 22). My task is to determine what the specified part should be. This specified part is otherwise known as the "the minimum term". It is the term which the Applicant must serve in full before becoming eligible for consideration by the Parole Board for early release on licence.
6. For the purposes of this application the court has received and had regard to written representations made on behalf of the Applicant by his solicitors and from the Crown Prosecution Service (the CPS) directed to the circumstances of the offence and the Applicant and to the mitigating and aggravating factors material to the Applicant's offending and the principles to be applied by the court.
7. I have been asked by those representing the Applicant to hold an oral hearing. I do not however consider that there is anything in the issues that I have to decide that requires an oral hearing and I do not consider that one is necessary. The statute itself contemplates (paragraph 11 of Schedule 22) that an application of this kind will normally be determined without an oral hearing and although I accept that the statute does allow for an oral hearing if considered appropriate (see R (Hammond) v Secretary of State for the Home Department [2004] EWHC 2753) it will be a rare case which requires such a hearing. This is not such a case in my judgment. The matters the Applicant seeks to raise through his solicitors are clearly expressed both in his original representations and in response to those made by the CPS and will not improve through oral development.
8. I have also read a psychiatric report on the Applicant prepared before his trial and dated the 9th of January 1997. No mental health issues arise in this application. There is no suggestion that the Applicant was suffering from any mental disorder or mental disability capable of lowering his culpability.

The principles to be applied

9. In determining the minimum term I am obliged under paragraph 4 (1) of Schedule 22 to have regard to the seriousness of the offence, (para 4(1)(a)), the length of any period in custody prior to sentence and the effect of any direction that would have been given with regard to crediting time on remand in custody if the court had sentenced the Applicant to a term of imprisonment (the effect of para 4(1)(b)), and the length of the period notified by the Home Secretary which in this case as already indicated was 18 years.(para 4(1)(c)).
10. In considering the seriousness of the offence, I must under paragraph 4(2) of the Schedule have regard to (a) the general principles set out in Schedule 21 and (b) the recommendations of the trial judge and the Lord Chief Justice as to the minimum term.
11. However by virtue of paragraph 3(1)(b) of Schedule 22 I cannot set a minimum term which is greater than the term notified by the Home Secretary.
12. The minimum term is not moreover concerned with any assessment of the dangerousness of the Applicant. That will be a matter for the Parole Board to consider when determining whether or not to release the Applicant on licence once the minimum term has been served. Subject to the matters to which I am obliged to have regard, in fixing the minimum term the court is concerned with the proper assessment of the level of seriousness of the offence and the degree of culpability. The minimum term which has to be served in full is meant to reflect these matters for the purposes of retribution and deterrence.
13. As indicated I have to have regard to the general principles in Schedule 21 although this Schedule's primary application is in relation to the fixing of minimum terms under section 269 of the Act applicable to life sentences fixed by law passed after 18^th December 2003. Under those principles I have first to choose a starting point having regard to the factors identified in the Schedule. Where as here the offender was aged 18 or over but under 21 when he committed the offence, the Schedule provides for two starting points: 30years (para 5) and 15 years (para 6). The court has then to decide whether to depart from that starting point having regard to any aggravating or mitigating factors to the extent that they have not already been allowed for in the choice of starting point. Paragraphs 10 and 11 respectively of the Schedule identify a non exhaustive list of potential aggravating and mitigating factors. The court is not to apply these principles in any mechanistic fashion. It ultimately has to form its own judgment as to the seriousness of any offence and where the minimum term should fall.
14. I should observe however, in the light of the written representations made by the Applicant, that this application is not governed by paragraph 10 of Schedule 22. That paragraph relates to the passing of a mandatory life sentence after the commencement date of the Act in respect of an offence committed before that date. In such circumstance the court has to form an opinion as to the minimum term which the Secretary of State would have been likely to notify under the practice followed by the Secretary of State before December 2002 and the court may not make an order specifying a minimum term greater than such likely term. I am mindful of the detailed guidance given in Sullivan and Others [2004] EWCA Crim 1762 as to the correct approach to this practice, to be taken by any court which is passing a sentence of mandatory life imprisonment for such a pre December 2003 offence. However in this application this court is not being called upon to pass a mandatory life sentence. It is being asked to review the minimum term in relation to an existing mandatory life sentence passed in 1997 in respect of which a minimum term has already been notified by the Secretary of State. By definition this court does not have to form an opinion as to what the notified term would have been. The notified term is known. Hence I do not regard it necessary to consider the likely starting points and the effect of mitigating and aggravating factors under the guidance given by Lord Bingham CJ in his letter of the10th February 1997 or the material Practice Direction of 2002. The principles I have to apply are those identified in paragraph 3 and paragraph 4 of Schedule 22 which I have already set out.
15. All this said, if it be material, given the date upon which Lord Bingham made the recommendation in this case, it must be likely that he will have had in mind and will have applied the very principles set out in his own letter sent out the following month, and of course the Secretary of State thereafter notified a term within the recommendation of the Lord Chief Justice.

The circumstances of the murder

16. I turn to the facts and circumstances of this murder. For this purpose I have had access to the trial Judge's report, the prosecution case summary and the observations made both in the Applicant's representations and those of the Crown Prosecution Service.
17. On any view this was a savage attack on a child in a public playground with the use of a knife to cut the victim's throat. There was associated sexual conduct. Her breast had been bitten. There were severe injuries to the genital areas. The trial judge in his report expressly referred to sadistic features. That report described the offence and the circumstances in which it was committed in these terms:

"Killing of 15 ½ year old school girl under playground slide in village of Ansley Common, near Nuneaton Warwickshire on 14^th September 1995. Death due to victim's throat being cut by knife 4 or 5 times. Severe injuries to vagina including 3" diameter perforation of top of vagina, and external cut extending nearly to anus. Bite mark to left breast. No evidence of deposit of semen.

Defendant denied responsibility connected to offence by DNA profile from saliva surrounding the bite mark and matching of teeth"

18. The general comments of the Judge within the trial report were as follows, although I emphasise again that this court is not concerned with any assessment of the dangerousness of the Applicant:

"This was a savage murder with sadistic features. The Defendant had a liking for knives. He is in my opinion a very dangerous young man. A psychiatric report was obtained upon him but there is no mental, abnormality which would have supported a plea of diminished responsibility."

19. The case summary describes how the victim's partially clothed body had been found under the slide in the local park just a few yards from her house. Her trousers and pants had been pulled down. That summary states that there was no evidence of defensive injuries and that the "death had resulted from a combination of shock and haemorrhage due to slicing injury to neck containing at least four slicing movements" the severe perforating injury to the vagina is described as a "subsidiary" inflicted by a blunt instrument involving more than one thrust, "inflicted at or about the time of death".
20. In making his recommendation of 17-18 years the Lord Chief Justice made the following comments:

"This is rightly described by the Judge as a single murder with sadistic features. But the offender's youth – 19 when the offence was committed – leads me to make a somewhat lower recommendation than the Judge. I would recommend a period of 17- 18 years."

21. I turn to my conclusions on this application.

Schedule 21

22. This patently was a savage murder of a child involving sexual conduct. In these circumstances on any application of the principles in Schedule 21 I consider this case would properly fall within paragraph 5, being a case where the seriousness of the offence is properly to be characterised as one which is particularly high and under which the appropriate starting point for the determination of the minimum term is 30 years. See paragraph 5(2)(e) which includes as a case which would normally fall within this category, "a case involving sexual or sadistic conduct". Given moreover the description of the offence in the trial report and the comments of both the trial Judge and the Lord Chief Justice that there were sadistic features, this case would appear to fall within both limbs of paragraph 5(2)(e). The particular brutality of he attack with the use of the knife are aspects which are in reality accommodated within the 30 year starting point which on any view is a very severe penalty. I can see the force of the submissions that the court should find an additional aggravating factor within paragraph 10 in the particular vulnerability of the victim by reason of her age and I have also had regard to the submission that there may have been significant mental or physical suffering inflicted before death although the evidence on this is not entirely clear. However I am mindful that Schedule 21 is not to be applied in a mechanistic fashion without regard to the overriding discretion vested in the court as to its assessment of seriousness.
23. In any event for present purposes I consider it unnecessary to go any further than to find that subject to mitigating factors, the minimum term having regard to Schedule 21 principles would be at least 30 years. The one mitigating factor of any strength lies in the Applicant's young age at the time of the murder, namely 19 years. As to whether there is any additional mitigation based upon a lack of premeditation, the evidence is unclear. However again for present purposes I find it unnecessary to go any further than to record that whatever view is taken of the mitigation properly available to the Applicant, no court in my judgment having regard to Schedule 21 principles could justifiably reduce the 30 year starting point to below 18 years and could well arrive at a higher figure.

Schedule 22

24. The reason I find it unnecessary to go beyond that which I have already stated, lies in the provisions of paragraph 3(1)(b) of Schedule 22 which prevents me from setting a minimum term which is greater than the term notified by the Home Secretary. This in this case was 18 years and was itself within the bracket recommended by the Lord Chief Justice and two years below that recommended by the trial Judge to which recommendations I must also have regard. This all means that the question for me for practical purposes is whether the determination of the minimum term having regard to Schedule 21 principles arrives at a figure below the 18 years notified by the Home Secretary. For the reasons I have already given it does not. In my judgment there can be no justification to reduce the minimum term to below 18 years and this is the figure which in principle I shall adopt.
25. I should add I have had regard to the Applicant's good behaviour and progress whilst in custody referred to in his representations and the accompanying documentation including his successful completion of an Enhanced Thinking Skills programme and educational courses but none of this is of such exceptionality which enables me to alter what is otherwise the appropriate minimum term.
26. I do however have to have regard to the effect of any direction that would have been given with regard to crediting time on remand in custody if the court had sentenced the Applicant to a term of imprisonment. I am satisfied that the Applicant was held on remand for 441 days and that the minimum term should be reduced by this period.
27. For these reasons the minimum term in this case is to be specified as 18 years less the period of 441 days. I order that the early release provisions under section 28(5) to (8) of the Crime (Sentences) Act 1997 are to apply to the Applicant as soon as he has served this specified term.