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 24 July 1995 at the Crown Court at Cardiff before Mr Justice Jowitt this Applicant pleaded guilty to the murder of his former wife Margaret Whitcombe. On the same day he was sentenced to life imprisonment which was the sentence fixed by law. The applicant was then almost 42 years of age, his date of birth being the1st of August 1953.
2. On the 25^th of July 1995 the trial Judge made a recommendation that the Applicant should serve a minimum term of 18 years before being considered for early release on licence. The Applicant had also pleaded guilty to an offence of unlawfully wounding Alan Neil Jones with intent to do him grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861 for which the judge passed a discretionary life sentence. In recommending the minimum term the he did in relation to the mandatory life sentence, the Judge wrote as follows in his report to the Home Secretary:

"Taking into account both offences, 18 years actual custody but 16 years if it is appropriate to allow any discount for the pleas of guilty.

In respect of the discretionary life sentence I did not specify any tariff period for the purpose of section 34; to do so would have been meaningless, having regard to the mandatory life sentence."

3. On the 31^st of July 1995 the Lord Chief Justice, Lord Taylor, made a recommendation to the Home Secretary that the minimum term be 18 years.
4. On the 19^th of October 1995 the Home Secretary in writing notified to the Applicant a minimum term of 18 years.
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 on behalf of the Applicant made by his solicitors in relation to the mitigating and aggravating factors material to the Applicant's offending and the principles to be applied by the court. The court has also received representations from the Applicant's son, Mr Christopher Manning. The Crown Prosecution Service has also made representations. These are confined to the facts of the Applicant's offending, the circumstances of the Applicant's arrest and the effect of the attack upon Mr Jones. No response has been made to these on the Applicant's behalf on the understandable ground that the Applicant pleaded guilty and accepted all the evidence against him.
7. I have nonetheless 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 and will not improve through oral development.
8. I should also record that from the Judge's trial report there were two psychiatric reports. In the words of the words of the Judge: "There were two psychiatric reports. One said that at the time of the attempted murder the defendant was depressed and that at the time of the murder he had an abnormality of mind though not such as such to diminish his responsibility for his act. The other report did not accept there was any abnormality of the mind". However there is no suggestion in the representations now being made on behalf of the Applicant by his solicitors that there are any mental issues material to this application. In other words there is no representation that the Applicant was suffering at the time from any mental disorder or mental disability which lowered his degree of culpability and certainly there is nothing in the Trial Judge's report which suggests this to have been the case.

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, or the combination of the offence and one or more offences associated with it" (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 minimum term notified by the Home Secretary.
10. In considering the seriousness of the offence or combination of the offence and one or more offences associated with it, 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. I have already set out those recommendations. In effect the Home Secretary followed the recommendation of the Lord Chief Justice. The trial Judge recommended 16 years only if any discount was to be allowed for the pleas of guilty, otherwise his recommendation was also that of 18 years.
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, in this case 18 years.
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 as set out above, 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. The Schedule provides for three starting points: a whole life order (paragraph 4); 30years (paragraph 5) and 15 years (paragraph 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 or combination of offences and where the minimum term should fall. Further paragraph 12 of Schedule 21 expressly provides that nothing in the Schedule restricts the application of the statutory provisions within the 2003 Act relating to reduction in sentences for guilty pleas.
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 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 1995 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 February 1997 or the material Practice Direction of 2002. The principles I have to apply are those identified in paragraph 4 and paragraph 3 of Schedule 22 which I have already set out.
15. I turn to the facts and circumstances of this murder which I take from the trial Judge's report and his sentencing remarks. In short form the Applicant late into the evening of the 18^th December 1994, some eight weeks after his release from prison for the attempted murder of his victim, his former wife, waited outside her address, armed with a sawn off double barrelled shot gun and a large butchers knife, until she returned with her then man friend, Mr Jones. The Applicant attacked Mr Jones with the knife causing permanent injury to his hand and fracturing his skull, and then followed his former wife into her home where he fatally shot her in the face at close quarters with the shot gun. A month later the Appellant gave himself up to the police and made a full confession.
16. The judge in his trial report described the circumstances in the following terms:

"The defendant was formerly married to the victim. It was a stormy marriage and he was violent towards her on a number of occasions. In 1992 she left him, whereafter he sought her out and attempted to murder her, attacking her with a knife and attempting to strangle her. On his plea of guilty to attempted murder he was sentenced to 4½ years.

Whilst in prison the defendant entertained the hope, forlorn as he must have realised, that they might be reconciled. But his view also was if he could not have his wife no one else should and he frequently expressed this view. She obtained a divorce while the defendant was in prison.

On 18^th October 1994 the defendant was released on parole. A few weeks later he asked an acquaintance if he could procure for him any sort of gun with which he could kill his former wife. No gun was forthcoming. On 16^th December 1994 the defendant spoke again of his intention to shoot her.

Approaching midnight on 24^th December 1994 and having by now obtained a sawn off double barrelled shotgun together with cartridges and a large and heavy butcher's knife the defendant lay in wait outside the home of his former wife. She returned with a man friend Jones. The defendant attacked Jones, hacking and slashing him with the knife, causing permanent injury to his hand and fracturing his skull in several places. Then the defendant followed his former wife into her home. He discarded both barrels of the shotgun, the second at less than 2' range at her face, so that she died very shortly after .

The defendant left the house. A month later he gave himself up to the police. He made a full confession saying he told his wife on the day he married her that if she ever messed about he would kill her. When the interviewing officer observed that people say that sort of thing the defendant replied," I mean what I say. "He said his intention was to shoot his former wife if they could not be reconciled and that attempts to talk him out f this had been to no avail."

17. What is clear from the Judge's report and his sentencing remarks is that the Judge came to the firm conclusion that before the Appellant had arrived at the house that evening, he had already formed the intention to kill his wife and had acquired and loaded the gun for this purpose and there was no question of his acting under any kind of provocation. In the written representations on behalf of the Applicant it is suggested that he had been provoked into killing his wife in a non – legal sense, and that it was when he saw his ex wife with another man that "he lost control and shot the victim and attempted to murder the other man with a kitchen knife". I reject this version of the facts. I see no reason to depart from the conclusions on this issue formed by the Judge for the reasons given by the Judge in his report:

"It was canvassed in mitigation that the defendant did not go to the house intending to kill his victim but to kidnap her, in the hope there might be reconciliation. It was said that his intention to kill was formed only when he saw Jones was with Mrs Whitcombe. I rejected this. The defendant's candour with the police showed clearly he had gone to the house for the purpose of murder".

18. I turn to my conclusions on this application.
19. This was a cold blooded murder involving the use of a firearm. In these circumstances, on any application of the principles set out in Schedule 21, I consider this case would properly fall under paragraph 5 being a case where the seriousness of the offence is properly to be characterised as one which is particularly high (see paragraph 5(2)(b)). The appropriate starting point under these principles would accordingly be 30 years. I can find no mitigating factors of any weight save for the plea of guilty. For the reasons I have already given, this is not a case where the Applicant can lay claim to any degree of provocation and there is no question of any mental disorder or disability reducing culpability. There are moreover aggravating factors which might be considered to add to the seriousness of the offence to justify the court departing from that starting point and moving upwards. These lie in a significant degree of planning or premeditation and the brutal nature of the attack on Mr Jones, the s.18 associated offence. However I am mindful that a court must not lose sight of the fact that the 30 year starting point is itself a very severe penalty, and that ultimately the court must exercise its own discretion. In all the circumstances I am prepared to proceed on the basis that having regard to the principles in Schedule 21, the court would not go above 30 years for the minimum term and moreover would then discount the term by a sixth for the plea of guilty, arriving at a figure of 25 years.
20. However as paragraph 3(1)(a) of Schedule 22 provides that I shall not determine a minimum term greater than that notified by the Secretary of State which in this case was 18 years , the question for me for practical purposes is whether the determination of a minimum term having regard to Schedule 21 principles arrives at a figure below the notified period of 18 years which was also the recommendation of the Lord Chief Justice, albeit not entirely that of the trial Judge. I can see no basis upon which any court could arrive at a figure below 18 years starting out from a point of 30 years, even allowing for the plea of guilty. This would be the case even if it had been appropriate to allow some degree of mitigation based on non legal provocation and even if there had been material justifying a reduction in culpability by reference mental disorder.
21. In all these circumstances I see no justification for reducing the minimum term below that notified, namely 18 years and that is the figure which in principle I shall adopt.
22. 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 offending behaviour courses and educational courses but none of this is of such exceptionality which enables me to alter what is otherwise the appropriate minimum term.
23. 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 185 days and that the minimum term should be reduced by that period.
24. For these reasons the minimum term in this case is to be specified as 18 years less the period of 185 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.