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
		Paper Application 11/02/2015

Introduction

1. This is the review of a minimum term imposed on a person convicted of murder who was under 18 at the time of the offence and who was sentenced to detention during Her Majesty's pleasure. The House of Lords in R (Smith) v Secretary of State for the Home Department [2005] UKHL 51; [2006] 1 AC 159, held that the tariff for a person sentenced to detention during her Majesty's Pleasure may be reduced on reconsideration if there is clear evidence of exceptional and unforeseen progress.

Background

2. The applicant in this case, Paul Michael Scott, was convicted of murder in the Crown Court at Hull on 20 February 2009. The Recorder of Hull, HH Judge Mettyear, ordered that he be detained at Her Majesty's pleasure. He specified eleven years less 266 days spent on remand as the minimum term to be spent in custody. At the time of the murder Paul Scott was 17 years old, having been born on 19 November 1990. His co-accused, Adam Robert Parker, was given the same sentence, although his minimum term was the eleven years less 266 days spent on remand.
3. The background to the murder was this. The victim, Anthony (Tony) McKenna was homeless and generally slept outdoors or at friends' houses. On a night in early May 2008 he slept for a period at a friend's house but due to his intoxicated state he was asked to leave just after midnight to avoid the children there seeing him in the morning.
4. Just prior to midnight, Mr Scott, along with the co-accused Mr Parker and a third young man, left the home of the latter's mother in Scunthorpe to meet a friend of hers in the car park of a nearby supermarket. En route they encountered Mr McKenna, who was lying against the fence of a property at the junction of two roads. In sentencing Mr Scott and Mr Parker, the judge described what happened:

"You had been drinking and probably both of you taking drugs. You came across the drunken Tony McKenna who was laid out on the floor, unable to put up any sort of defence for the attack that was to follow. He was causing no-one any problems at all. So far as your story, Adam Parker, is concerned, that you told to the police and to the jury about him attacking you, I utterly reject that.

This was a wholly unprovoked and cowardly attack by two of you on this drunken man. You set about him punching, head butting, stamping, jumping. He sustained terrible injuries including 13 broken ribs, they being to either side of his body, awful injuries to his face and his head as a result of the kicks that he sustained. He suffered a punctured lung. About three weeks later, having spent a painful time in hospital, he died as a result of the injuries to his chest."

5. Apparently, after meeting the mother's friend, the group returned the same way and found Mr McKenna lying where he had been left, with blood surrounding his head. An ambulance was called by the third young man and all four waited for the paramedics to arrive before leaving.
6. When Mr McKenna was taken to Scunthorpe General Hospital, although it seems somewhat strange, it was not realised that the injuries had resulted from an assault because he had been hospitalised on a number of occasions with alcohol-related injuries. Eventually, however, as a result of inquiries by Mr McKenna's sister, the three were arrested for murder on 29 May 2008. In interview, Mr Scott stated that Mr Parker was the main party in the assault, but also stated that the third young man had jumped on Mr McKenna. Mr Scott admitted that he had kicked Mr McKenna once to the face. Later it was decided that there was no evidence against the third young man.
7. Mr Scott had appeared before the Juvenile and Magistrates Courts on four occasions for seven offences, six of them being offences associated with motor vehicles and the last involving having a knife in a public place.
8. In sentencing Mr Scott and Mr Parker, the judge said this:

"You have been jointly convicted and it is not appropriate to distinguish between you in any way. The starting point laid down by Parliament for people of your age for the minimum term, is a starting point of twelve years. To that I must consider what aggravating factors there are and what mitigating factors there are.

This was a wholly disgraceful attack, unprovoked, on a helpless and vulnerable man and it was on the public streets of Scunthorpe. I recognise that there is some mitigation. This was not planned, I accept that it was on the spur of the moment and started by you, Parker. I also accept that it is mitigation that the Crown has accepted, as I accept, that your intention was not to kill, it was an intention to do really serious bodily injury."

Exceptional progress

9. Mr. Scott's case is that his tariff should be reduced on the basis of his behaviour in prison and the exceptional progress he has made while there. Indicative of exceptional progress is if a person demonstrates an exemplary work and disciplinary record in prison; displays genuine remorse and accepts an appropriate level of responsibility for the part played in the offence; shows the ability to build and maintain successful relationships with fellow prisoners and prison staff; and successfully engages in work (including offending behaviour/offence-related courses) with a resulting substantial reduction in areas of risk. All of these should, ideally, have been sustained over a lengthy period and in more than one prison. The presence of one or all of these factors is not conclusive of exceptional progress having been made in any individual case. To reach the threshold of exceptional progress there needs to be some extra element to show that the detainee has assumed responsibility in showing himself to be trustworthy when given such responsibility. Such characteristics may well be demonstrated by the detainee having done good works for the benefit of others. Again, ideally, there would need to be evidence of sustained involvement in at least two prisons over a lengthy period.

Evidence of Mr Scott's progress

10. In a post-sentence report dated 2 June 2009, Mr Scott maintained that he only kicked Mr McKenna once. When at HMP Hull, Mr Scott's OASys found that he posed a high risk of serious harm to the public and also to a known adult. In the first Sentencing, Planning and Review report on Mr Scott when he was at HMP/YOI Moorlands, the responsible officer opined that, since Mr Scott had no previous convictions of violence before the murder, it was more appropriate to view him as posing only a high risk to the public since there was no information to suggest a known adult was at risk. That report noted that Mr Scott had four prison adjudications – in August 2008 for theft, in early January 2009 for having a mobile telephone and a pair of scissors in his possession, in February 2009 for having fermenting liquid in his possession and in July 2009, for disobeying an order in relation to a tattoo. The report noted his motivation to address his sentencing plan targets. There had been a remand planning meeting on the 27 June 2008 where concern was expressed about his behaviour.
11. In December 2010, Mr Scott completed the Thinking Skills programme. The summary of his progress was that it had been "good" and that he had developed a number of skills, including demonstrating a good understanding of problem-solving steps and the application of skills to the potential problems he might encounter. The report noted that he contributed to group discussion, that he was able to consider his thoughts, emotions and situations in the build up to the offence and that he had, as his red flags, matters such as boredom. At that time he was on the enhanced wing, which demonstrated that he was able to maintain self-control and stay out of prison. He had commented during the programme that he had to say "no" to fights because it would have an impact on his sentence. In one of his own comments, Mr Scott said that he was working hard in prison since it was a bad place and that it had taken hard work to behave. The report noted that Mr Scott's OASys indicated that he had significant problems with being easily influenced by criminal associates. During the programme he was able to identify "red flag" persons in his social circle.
12. Mr Scott completed the CALM programme in December 2011 (an anger and emotional management programme). During the course, an area of risk for him was identified as a desire to fit in with his peers and a history of feeling excited and getting carried away. He addressed those issues during the course of the programme. The programme report stated that he supported other group members and made valuable contributions during discussions. His coursework was to a good standard. During the course it was considered that he showed a good level of motivation to change. He was able to offer counter-arguments to situations, such as using aggression against those aggressive to him. He had a good understanding of the triggers to anger.

"Overall Mr Scott has made good progress, he was a valuable member of the group who contributed very well to group discussions, skills practices and sub-group work. … It is considered that his areas of his strength are his open-minded willingness to consider the many different facets of the programme, reflect on his past behaviour and assess what he has learned to benefit himself in the future. … In terms of development it is recommended that Mr Scott practice recognition, challenging and replacement of distorted thinking and consider future situations that he may come across, which may test his CALM skills, particularly as he plans for relocation to another prison."

13. In February 2012, Mr Scott transferred to HMP Lindholme. A Sentencing, Planning and Review meeting at HMP Lindholme in August 2012 noted that Mr Scott had no adjudications, worked in the bakery and had made good progress so far. His OASys assessment was by then reduced to a medium risk to the public. The Sentencing, Planning and Review meeting the following year, in October, noted that he had good case notes, had met many of his targets, had no adjudications since 2009 and was an enhanced prisoner. He had been removed from his kitchen job but the reason was unknown. His offending manager and offending supervisor were pleased with his progress and acknowledged that he had dealt with many situations with maturity.
14. Reports for Mr Scott's tariff assessment report were prepared from mid-2014. A clinical matron, with minimal experience of young lifers, reported that Mr Scott had had a dip in mood associated with his tariff assessment. There was a high risk of self harm. He now appreciated the catastrophic results of his actions. All his sentence plan targets had been met; he had progressed as far as he could at that point and appeared insightful.
15. Mr Scott worked in the prison kitchen between September 2013 and May 2014, i.e. 8 months until he was sacked. The catering manager reported:

"I do not think there was any improvement in his maturity during the period he worked for us. We had to constantly move him from job to job to get anything out of him and he was constantly told off for trying to pinch food."

16. From October 2012, Mr Scott had the one offender supervisor, who had met him on six occasions. In her report of 19 June 2014 she noted that his perspective on his role in the murder had not changed, since he still maintained to her that hit Mr McKenna only once to the head. Although he asserted that he had developed emotionally, he stated to her and his offender manager that he occasionally contemplated where he would be now if he had denied any involvement. He presented to her as articulate. He was at that point on enhanced level. He had demonstrated a generally positive pattern of behaviour, but his case notes recorded two warnings and these reports:

20/7/2011: "Since Michael has come back to the bakery after losing his job in the segregation unit his attitude has been appalling… He walks off jobs and [is] generally being lazy…"

14/5/2014: "Was caught eating cake that was not his without asking permission. [He] has been warned about his before so has been partly removed from kitchens."

There was also one intelligence report on his security file that he was in debt.

17. There was a change in Mr Scott's offender manager from May 2013, so his current offender manager acknowledges in her report of 24 June 2014 that she cannot comment extensively given that she had only seen him twice. But he did not seem to have changed his account of his role in the murder from that he told her colleague in 2009, although he did accept that he was responsible for Mr McKenna's death and had many regrets about what happened. Although he had felt hard done by with the sentence after it was imposed, he had now come to terms with it. Mr Scott explained that he no longer felt the need to impress others. He did not want to become involved in conflict. He had begun to read and wanted to leave prison with skills. There was no evidence that continued detention would damage or put at risk his continued development. He remained a high risk to the public, which was not to undermine the progress made in custody. He engaged with staff. Reports from the wing were that he was polite, quiet and did what was required of him. One of his jobs involved a considerable amount of trust in terms of having to account for tool kits.

Mr Scott's case

18. In submissions on Mr Scott's behalf his solicitors, Tates contend that he has made the exceptional progress necessary for a reduction in tariff. At the time of the offending he was an immature 17 year old but he has come a long way since. He now has a new attitude to life and is full of remorse. He has a good appreciation of the impact of the murder on Mr McKenna's family. He comes from a good family and knows that he has hurt them. He does not like the person he was, with his bad attitude, and has made every effort to become a better person while in prison. His offender manager and offender supervisor have commended him for his extreme maturity. He has had an exemplary record in both HMP Moorlands and his current prison. He has undertaken offender behaviour work, because he wants to address his thinking and behaviour. With the CALM program, his area of strength was to reflect on his past behaviour and assess what he has learned to benefit himself in the future. He has completed vocational and educational courses. He had been a "listener" since 2011, a wing representative for the previous 3 months and a lifer representative for 6 months (there is a letter from the Samaritans confirming Mr Scott's position as a "listener"). There have been no adjudications since July 2009, and he now resides in a part of the prison for the most trusted and well-behaved prisoners.
19. As to the security entry in September 2013, Tates report that Mr Scott has no idea about its basis and submit that it is completely unsubstantiated and should be ignored. On his account, he was not sacked from his job in catering in 2014: he was moved. If he had been sacked he would not have been able to apply for another job as he did, almost immediately. As to stealing food, he was following what the others did in taking lunch and thought it was acceptable. Tates submit that the catering manager's comments about maturity should be discounted since he had only known him for seven months. The reported dip in mood by the clinical nurse was explained by his reflections on what he did and a death in the family. The report on eating cake that was not his was again because he was doing what others did. His reported childish behaviour was because he sometimes feels it is difficult to assert himself with older prisoners. He has held a number of positions of trust, such as working in the kitchens. He has never tested positive for drugs. All this constituted exceptional progress, Tates submitted, sustained over a significant period.

Views of Mr McKenna's relatives

20. Mr McKenna's daughter and sister describe the impact of his death on their lives and are against a reduction in tariff.

Conclusion

21. I have come to the regretful conclusion that Mr Scott has not made the exceptional progress to enable me to recommend a reduction in tariff. There is no doubt that he has made real progress in prison, compared with the person he was when he entered custody. He is a much changed man in terms of his maturity. His successful completion of courses, including educational courses, is to be applauded. There is also a greater acceptance of what he did, whereas immediately after his incarceration in 2009 he was attempting to minimise his role and to avoid responsibility. I accept that he now displays greater remorse. His offender manager's report of June 2014 is quite positive. All of this will go a considerable way with the Parole Board when they come to assess him for release.
22. In my view, however, Mr Scott has not surmounted the high threshold of exceptional progress. I accept that there is no need for the presence of all of the factors I mentioned earlier to demonstrate this. But there are just too many concerns. He still does not take full responsibility for the part he played in the murder. Just assume that I were to disregard the catering manager's assessment, Mr Scott's removal from the kitchen, his earlier behaviour in the bakery and the incident with the cakes, so that he could be regarded as having an exemplary work and disciplinary record. The fact is that those incidents and the perception of the catering manager would still demonstrate an inability on Mr Scott's part to build and maintain a successful relationship with prison staff and other inmates. The catering manager's assessments are devastating, given Mr Scott was in the kitchen for the substantial period of 7 months. Mr Scott's own explanations for these incidents through his solicitors indicate a willingness to follow the wrong paths of others. Moreover, the explanation for what has been characterised as his childish behaviour is an admission on his part that he finds it difficult to deal with older prisoners; that is not the hallmark of exceptional progress. He has been a "listener" for three years, and that certainly demonstrates good works for the benefit of others. However, I cannot find that he has always been succeeded when given responsibility.
23. For the reasons I have given I cannot conclude that any reduction of tariff is justified in this case.