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
		3/4/2012

Mrs Justice Nicola Davies:

1. This is an application pursuant to paragraph 3, Schedule 22 of the Criminal Justice Act 2003, "the Act", by Haroon Sharif for a review of the minimum term of imprisonment of 20 years set by the Secretary of State and notified to the applicant on 10 March 2000. On 30 November 1998, following a trial at Birmingham Crown Court, Haroon Sharif was sentenced to life imprisonment by Jowitt J for the murders of Anum and Majid Khan. On 3 December 1998, Jowitt J recommended a minimum term of 20 years' imprisonment, the recommendation of the Lord Chief Justice was 19 to 20 years. In considering this application, the Court cannot increase the minimum term.
2. Haroon Sharif was one of five defendants convicted of these murders, his co-accused were Alan Swanton, Muhammed Nawaz, Haq Nawaz and Thomas Leidl. The facts of the case I take from the summary provided by the Trial Judge in his report to the Home Secretary where it was stated:

"Haq and Mohammed NAWAZ are brothers and SHARIF is their cousin. SHARIF, who lived in Oxford, was having an affaire with Riaz MUNSHI. The victim family, the KHAN AKHTARs, who lived in Oxford, had a son, Amjad, who had an affaire with her sister, Fiaz. Fiaz fled the country and did not stand trial.

The two sisters bore a grudge against the KHAN AKHTARs because of trouble between them which arose out of these affaires and the scurrilous gossip about them circulated by members of the KHAN AKHTAR family and which culminated in their threatening them with violence if they should remain in Oxford.

Subsequently to this Haq NAWAZ became Fiaz's lover and he and SHARIF shared the sisters' grudge because of the way they had been treated. SHARIF had a further reason to hold a grudge against the KHAN AKHTARS. Amjad had been sent to prison for drug dealing and they blamed SHARIF for his involvement in drug dealing and spread gossip to the effect that SHARIF was a drug dealer. The sisters went to live in Stevenage and SHARIF went to live in Haq NAWAZ's home in Letchworth to be near Riaz.

The murders were committed so that Haq NAWAZ and SHARIF could be revenged. (The prosecution case was that the MUNSHI sisters shared this desire for revenge.) The plan was to put petrol through the letterbox of the KHAN AKHTAR's house after they had retired to bed and set light to it. LIEDL and SWANTON, who did not know the KHAN AKHTAR family, and who lived in Stevenage, were recruited by Mohammed NAWAZ to set the fire. He also lived in Letchworth. None of these three told the whole truth about this recruitment. They laid the sole blame on SHARIF but if was clear that although he played an active role Haq NAWAZ, who was the oldest of the defendants, was the ring-leader on the night of the fire.

SHARIF was already in Oxford when the two cars left Stevenage in convoy at about midnight on the night of the 25^th/26^th August 1997 bound for Oxford. They arrived there soon after 1.00am. In the cars were the other five defendants, Fiaz and two others who were not said to be a party to the plan to commit murder. The two cars drove along the street in which the KHAN AKHTAR house was and it was pointed out by Haq NAWAZ to Mohammed NAWAZ, with whom SWANTON and LIEDL were riding.

The cars then drove to a quiet spot where SHARIF joined them and thence, with SHARIF, to another location.

SHARIF had spent several hours reconnoitring in the area round the KHAN AKHTAR house. During the journey to Oxford there had been numerous phone calls between SHARIF and Riaz's mobile which she had with her in Haq NAWAZ's car (Fiaz was with her). It is clear that the purpose of these calls was the exchange of information between Haq NAWAZ and SHARIF relating to the plan to start a fire and the direction of operations.

There was time to kill because the KHAN AKHTAR house was not yet in darkness. It was not until about 2.30 am that the lights went out. There were six people in bed in the house, including a fifteen year old, and eight and a six year old. Further time was allowed for the residents to go to sleep and then the decision was made by Haq NAWAZ that it was time to set the fire. Around this time SHAROON had driven with Riaz to his parents' home, not far from the KHAN AKHTAR house.

The other defendants (and the three others) drove in their two cars to a street near the house and parked. SWANTON and LIEDL poured petrol into two plastic bottles from a petrol can. The bottle caps had holes pierced in them to enable petrol to be squirted through the letterbox. The petrol and bottles had been brought from Stevenage to Oxford.

LIEDL and SWANTON went to the house and each squirted petrol through the letterbox onto the carpet between the front door and the foot of the stairs and LIEDL put a lighted match to it. In all probably not less than a pint of petrol was squirted through the letterbox. LIEDL and SWANTON then rejoined Mohammed NAWAZ and the two cars left the scene.

The house, one of a terrace of three houses, was quickly engulfed in flames and the 15 and 8 year olds perished.

This was a cold blooded, calculated and carefully organised plan to murder."

3. Haroon Sharif appealed against his conviction on the basis that there was a material irregularity in the trial process relating to the judge's management of the jury in retirement. His appeal was refused on 13 May 1999.
4. The co-accused, Muhammed Nawaz, Haq Nawaz, Alan Swanton and Thomas Liedl have applied for and had their applications determined pursuant to Schedule 22 of the Act. In November 2007 Wilkie J fixed the following minimum terms of imprisonment:

Muhammed Nawaz, 17 years

Haq Nawaz, 22 years

Alan Swanton, 15 years

Thomas Liedl, 15 years

5. In considering this application, I have read submissions made on behalf of Haroon Sharif and on behalf of the prosecution. Annexed to the applicant's submissions are reports and testimonials of the progress which he has made during his years in custody. On his behalf, it is submitted that the 20 year term can properly be reduced to reflect "the exceptional, positive contributions that he has made towards his own rehabilitation and within the prison system for and on behalf of other prisoners."
6. Haroon Sharif was 19 at the date of the commission of offences, Haq Nawaz was 30. Haq Nawaz was identified as the ring leader, Haroon Sharif as a major co-ordinator. It is contended that Haroon Sharif's minimum term may properly be fixed between those of Haq Nawaz and Muhammed Nawaz in order to reflect his culpability.
7. Upon his remand into custody in December 1997, Haroon Sharif was placed at a Young Offender Institution. Upon attaining the age of 21, he was transferred to HMP Birmingham, in June 1999, he was transferred to HMP Swaleside, July 2003 to HMP Dovegate and in March 2009 to HMP Ranby. It is said that these moves reflect positive changes in Haroon Sharif, acquiring enhanced prisoner status and a change of status from Category B to C.
8. It is contended that Haroon Sharif has settled well into the prison system, has been drug free throughout, almost without exception polite and respectful in his dealings with staff, he has addressed the areas of concern which have been identified as risks insofar as he is able, his status as an enhanced prisoner has not been removed or suspended. In 2010 he developed and was actively engaged in an anti-radicalisation awareness programme, in addition, he has been involved in charitable fundraising and has taken on additional responsibilities in respect of his wing, race relations as a listener, a mentor and a volunteer within the chaplaincy and with special needs groups.
9. Between September 2001 and February 2002, documents demonstrate that Haroon Sharif went through a difficult period in which an adverse adjudication for "bad behaviour" was recorded against him. He continues to maintain his innocence, in 2008 it would appear that he was attempting to pursue avenues of appeal. As to the assessment of the risk he posed, four main areas have been identified: cold and detached; hold grudges; manipulative and deviousness.
10. In considering the application, the Court has to have regard to the matters set out in paragraph 4, Schedule 22 of the Act before any reduction for exceptional progress can be considered. The seriousness of the offences [paragraph 4 (1)(a)] involves consideration of the general principles in Schedule 21 [paragraph 4 (2)(a)] and any recommendations by the trial judge and Lord Chief Justice [paragraph 4(2)(b)] and the length of the notified term [paragraph 4(1)(c)].
11. At the time of the commission of these offences, the applicant was aged 19, the offences involved the murder of two people. On these facts alone, this case would fall within paragraph 5, Schedule 21 of the Act, attracting a starting point of 30 years for the minimum term. The case involved a significant degree of planning and pre-meditation. In his report to the Home Secretary, the trial judge described the offences thus: "This was a cold blooded, calculated and carefully organised planned murder." Subparagraph 10(a) of Schedule 21 identifies a significant degree of planning or pre-meditation as an aggravating factor. Subparagraph 10(b) identifies the fact that the victim was particularly vulnerable because of age or disability as another aggravating factor. Given the ages of those who died, they were, in my view, particularly vulnerable to attack by fire in the middle of the night and would be less likely to have the wherewithal to escape. The body of Anum, aged 8, was found curled up in a ball in the corner of a bedroom.
12. It is accepted by the prosecution that the mitigating factor identified in subparagraph 11(a) of Schedule 21 is made out, namely that this was a case with an intention to cause serious bodily harm rather than to kill. Further, as the applicant was aged 19 it is accepted that this would be a mitigating factor within 11(b) of Schedule 21.
13. The trial judge found that Haq Nawaz was the ringleader but that the applicant played an "active role". It is said by the prosecution that the significance of his role is demonstrated by:

i) He had the primary motive for revenge;

ii) He spent several hours reconnoitring the area of the victim's home before the attack;

iii) He was in telephone contact with Haq Nawaz as he and the other defendant's travelled to Oxford, the purpose of which was "the exchange of information between Haq Nawaz and Sharif relating to the plan to start a fire and direction of operations."

It is of note that the trial judge placed Haroon Sharif as the second most culpable offender in terms of the minimum terms he recommended to the Home Secretary.

14. Applying the provisions of Schedule 21 of the Act and given the seriousness of the offences, in my view the starting point would be 30 years. This would be aggravated by the premeditation and planning and the vulnerability of the victims and mitigated by two facts: an intention to cause serious bodily harm and the fact that Haroon Sharif was 19 at the date of the offence. Balancing the aggravating and mitigating features, the result would be a minimum term in the order of 30 years. As previously stated there is no power to increase the minimum term upon this application.

Exceptional Progress

15. I have read with care the many documents provided on behalf of the applicant. I accept that within the prison estate, the applicant has made progress. However, it is of note that he continues to deny the offence and this has caused difficulties in addressing risk factors and insight into his offending behaviour. Further, it would appear that even in 2008 the applicant was still hoping to appeal his conviction.
16. The fact that the applicant continues to deny his guilt does not, without more, mean that exceptional progress cannot be made. However, in the context of this case, I note that two of the four main areas of risk are "manipulative" and "deviousness". By reason of the nature of the two risks identified and against a background of denial of guilt, I view with caution progress made in custody.
17. Given the seriousness of the offences, which would have attracted a minimum term in the order of 30 years pursuant to Schedule 21, the continuing denial of guilt by the defendant and the risk factors which are relevant to progress made, I do not find that there are good grounds upon which to reduce the minimum term of imprisonment of 20 years less 352 days period spent in custody on remand.