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

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Queen Elizabeth II Law Courts, Derby Square, Liverpool, L2 1XA
		28th July 2010

A. Introduction

1. This is an application under Schedule 22 of the Criminal Justice Act 2003, pursuant to which the applicant seeks the setting of his minimum term. I have considered the representations made on his behalf by Marcus Farrar, solicitor, sent on 29^th April 2009, and the representations from the CPS dated 18^th September 2009. I have also read the other documents relating to the original trial and the original setting of the recommended minimum term.
2. The applicant is an "existing prisoner" within the meaning of Schedule 22. On 18^th December 1996 he was convicted of the murder of Nigel Wilson and sentenced to life imprisonment. The trial judge recommended a minimum term of 25 years. The Lord Chief Justice recommended a minimum term of 22 years. On 12^th June 1998, the Home Secretary notified the applicant that the minimum period that should be served before his release on licence was 20 years.
3. I have to decide whether I should order that the early release provisions under the 2003 Act should apply to the applicant after a shorter period than 20 years. It is not open to me to order that they should apply after a longer period. In considering the application, I must have regard to the seriousness of the offence and the general principles set out in Schedule 21 of the Act. I must also have regard to the recommendations made to the Home Secretary by the trial judge and by the Lord Chief Justice, noted above.
4. I am also to have regard to the effect that section 67 of the Criminal Justice Act 1967 would have had if the applicant had been sentenced to a fixed term of imprisonment, provided I am satisfied that, if he had been so sentenced, the length of his sentence would have been treated as reduced by a particular period under that section. In this way, the court takes account of any period that a person has spent in custody in connection with proceedings relating to the murder. I am satisfied that here I should have regard to a period spent by the applicant in custody on remand of 16 months and 10 days.

B. The Applicant's Offence

5. The applicant was one of four defendants who were convicted of the murder (or abetting the murder) of Nigel Wilson. For various personal reasons, all four of the defendants hated Wilson. One, Gaynor McKenny, arranged with another, Gaffney, to drive Wilson to an address in Conisbrough in South Yorkshire where he would be left overnight. The applicant and another co-defendant, Lindsay, were then recruited by Gaffney and the three men went to the address where Wilson was staying, probably intending to shoot him. Wilson fled by jumping through a window but the applicant and the other two men pursued him and one of them shot him dead in the street. Six shots were fired from a Colt .455 revolver. Wilson was shot through the head and neck and arms and died within seconds.
6. The applicant and the other defendants each blamed each other and each sought to minimise their involvement in the shooting. The judge's report noted that the best evidence "was to the effect that the gunman wore a striped shirt. Green [the applicant] wore a striped shirt". The judge's report went on:

"Put shortly, the case was left to the jury on the basis that the gunman was guilty of murder and that others who joined him for the common purpose of killing or causing Wilson serious harm by means of the gun would be guilty of murder also. Gaffney, Lindsay and Green all contended that the use of the gun was outside the common design which was to tell Wilson to stay away from Leeds and McKenny (Gaffney) and "rough him up" (Lindsay and Green). McKenny's case was that she had no idea that serious violence would be used."

7. The Judge formed the view that Gaffney, Lindsay and the applicant were all dangerous men; they were all prepared to participate in the shooting and kill if necessary. He thought that Lindsay, the applicant's brother-in-law, was the dominant personality. He thought that all three were likely to constitute a risk to the public for many years to come.

C. The Criminal Justice Act 2003

8. The first issue for me to determine is the appropriate starting point under Schedule 21 of the 2003 Act. Under paragraph 5 (1) of the Act, the appropriate starting point is 30 years for a murder involving the use of a firearm or explosive: see paragraph 5(2)(b). There were additional aggravating factors (Paragraph 10 Schedule 21) because of the degree of planning and premeditation. In the applicant's case there was a mitigating factor (Paragraph 11) because he claimed an intention only to cause serious bodily harm rather than to kill. In addition, as with many cases of joint enterprise, some reduction from the starting point may have been appropriate to reflect the fact that it was not clear beyond doubt which defendant had fired the gun.
9. Accordingly, under the 2003 Act, the minimum term would have been well in excess of the 20 year term notified by the Home Secretary on 12^th June 1998. Accordingly, the Act provides no basis for any sort of reduction in the applicant's minimum term.

D. The Practice in 1998

10. The murder was committed in 1995 and the applicant was sentenced in 1996. The practice adopted by the Home Secretary at that time was stated in Lord Bingham's letter to trial judges dated 10^th February 1997. That fixed the starting point for the "average, normal or unexceptional" murder as 14 years. However, the letter went onto identify various aggravating features that were justify more severe sentence, including evidence of a planned, professional, revenge or contract killing; the killing of a potential witness to defeat the ends of justice; and the use of firearms.
11. Each of those three aggravating factors was applicable here. This was a carefully planned killing. Wilson was suspected of being a police informer which was at least part of the reason for the animosity towards him and accordingly his killing may have been designed to defeat the ends of justice. And of course a firearm was used. In those circumstances, if the regime laid down in Lord Bingham's letter is relevant to the present application, it can again be seen that the 20 year minimum term was entirely justified on that basis as well.

E. Other Matters

12. The submissions provided on behalf of the applicant suggest that he has made exceptional progress whilst in prison and that, accordingly, the recommended minimum term should be reduced. I reject that submission. The test of exceptional progress is very high. In R v Cairns and Roberts [2006] EWCA Crim 2915, the Court of Appeal said:

"The standards should be very high; the progress must be exceptional, outstanding, and bearing in mind it provides the basis for a reduction in a period fixed for the purposes of punishment and deterrence, so it should be. Even where the necessary high standard is reached, the impact on the total tariff is likely to be very modest".

13. In the present case, whilst the applicant's progress has been good, I do not consider that it could be regarded as having met this high test. In addition, I note that nowhere within these papers is there any proper or unqualified expression of remorse on the part of the applicant. The submissions made on his behalf are entirely silent on that topic, and the documents provided by the prison authorities make plain that the applicant continues to minimise his role in the murder. He maintains the version that he gave in evidence to the court as part of his (unsuccessful) not guilty plea. In all these circumstances, no reduction in the 20 year minimum term on the basis of 'progress' has been made out.
14. The submissions provided on behalf of the applicant refer to the period of 16 months and 10 days that the applicant spent in custody prior to sentence. I consider that this should be regarded as time served by him as part of this sentence. Thus the 16 months 10 days that he had already served by the time the minimum term was imposed on him should count towards the 20 year term. Subject to that, there is no justification for reducing the 20 year minimum term imposed upon the applicant.