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
		14 December 2017

Introduction

I am required to conduct a periodic review of tariff for a detainee at Her Majesty's Pleasure in accordance with the House of Lords judgment in the case of R (Smith) v Secretary of State for the Home Department [2005] UKHL 51.

The Legal Framework

1. In the case of Smith, the House of Lords held that the tariff for a person sentenced to be detained during Her Majesty's Pleasure may be reduced, on reconsideration, if there is clear evidence of exceptional and unforeseen progress. There are three possible grounds on which to reduce the tariff:

i) The prisoner has made exceptional and unforeseen progress during the sentence.

ii) The prisoner's welfare may be seriously prejudiced by his, or her, continued imprisonment and the public interest in the offender's welfare outweighs the public interest in a further period of imprisonment lasting until the expiry of the current tariff.

iii) There is a new matter which calls into question the basis of the original decision to set the tariff at a particular level.

2. The current "Criteria for reduction of Tariff in respect of HMP detainees", provides guidance upon the matters which may be considered of assistance when considering whether an offender has made exceptional progress in prison, namely,
3. An exemplary work and disciplinary record in prison;
4. Genuine remorse and accepted an appropriate level of responsibility for the part played in the offence;
5. The ability to build and maintain successful relationships with fellow prisoners and prison staff; and
6. Successful engagement in work (including offending behaviour/offence-related courses) with a resulting reduction in areas of risk.
7. Moreover, the guidance makes clear that all of these matters should ideally have been sustained over a lengthy period, and that to reach the threshold of exceptional progress there would also need to be some extra element to show that the offender had assumed responsibility and shown himself to be trustworthy, which may well be demonstrated by the offender having done good works for the benefit of others over a sustained period of time.
8. My role is to review the current tariff and, if appropriate, to recommend a reduction based on one or more of those criteria. The Lord Chancellor and Secretary of State for Justice have agreed to honour any recommendation made.
9. In reviewing the current tariff in the present case it is to be appreciated that I am limited to a consideration of the progress and development of the offender whilst he has been in custody. Nothing I say reduces the seriousness of this offence of Murder, or diminishes the consequences of it for the victim's family and friends. Without doubt, this was a dreadful crime, and the consequences of it terrible, as described in the victim impact statement. However, in relation to the first of the criteria, what I have to do is to consider whether, during his period in custody, the offender has demonstrated exceptional and unforeseen progress, resulting in a significant alteration in his maturity and outlook since the commission of the offence and consequently whether, compared with the date of sentence, there has been a significant reduction in the level of risk posed to public safety such as to warrant a reduction in tariff.
10. Any reduction of course would not mean that the offender will necessarily be released any sooner that he would otherwise have been. Whether or not there is a reduction in tariff, the offender will not be released unless and until the Parole Board assesses him to be safe for release. However, a reduction in the tariff would mean that the Parole Board could consider whether he is safe for release earlier than it would otherwise be able to do so.

The Offence

11. The offence of murder took place on 8 July 2005. The offender had been drinking alcohol at a night club with his two co-accused, when the three of them attacked two males. During the attack, the offender took out a pocket knife, opened it and stabbed the deceased in the chest piercing his heart. The offender then stabbed the other male, who by then was on his knees, twice to his chest, and twice to his back.
12. In his report dated 13 November 2005, the consultant forensic psychiatrist, Dr Adrian Lord, who had been instructed on behalf of the offender and had viewed the CCTV footage of the incident, stated that "the viewer is left with the overwhelming impression of casual, indiscriminate yet utterly ruthless violence carried out for sadistic pleasure, on effectively defenceless victims."
13. The offender made good his escape from the scene, and went on the run for a period of about a week, before arranging to surrender to the police.

The Sentencing Exercise

14. The offender was charged with, and pleaded guilty to, murder and section 18, inflicting grievous bodily harm. At the date of his sentencing hearing, on 23 June 2006, the offender claimed that he had picked up the knife from the ground shortly before the stabbings, and that he had little or no other recollection of the incident.
15. The offender had previous convictions, including offences of possession of a firearm (a BB gun) and racially aggravated common assault in 2003, and assault occasioning actual bodily harm in 2004. The first set of offences involved the offender shooting his victim in the leg, and then threatening him with a bladed article. The offence of assault involved the offender driving a car at the victim.
16. The offender was on bail at the date of the offences in respect of an offence of burglary.
17. Dr Lord was of the opinion that on the Hare Psychopathy Check-List, screening version, the offender scored 22 out of 24, which was a strong indicator of a psychopathic personality. He noted that the offender was born and raised in London by his mother and grandmother. He had been diagnosed with Dyspraxia, Dyslexia and Speech Disorder, and did not cope well at school. Dr Lord estimated the offender to be well below average in terms of IQ and under-educated, but did not consider that the offender was suffering from any major mental illness at the time of the offence. Dr Lord was of the opinion that the offender presented a very grave risk to the public.
18. The pre-sentence report, dated 21 June 2006, noted that, under the Youth Justice Board criteria, the offender was a Persistent Young Offender, and concluded that the offender's risk to the public was very high. It was also noted that the offender was the father of two young children.
19. In her sentencing remarks, HHJ Anwyl stated that in view of the offender's age, 16 at the date of the offences, and 17 at the date of the sentencing hearing, the appropriate starting point for determining the minimum term for the mandatory sentence of Detention at Her Majesty's Pleasure for the offence of murder, was 12 years. However, she determined that there were both aggravating and mitigating factors, which resulted in a minimum term of 15 years, reduced to 14 years 5 months and 21 days to take account of the period which the offender had spent on remand. The aggravating factors were the use of the knife, and the unprovoked and premediated nature of the attack. The mitigating factors included, the offender's intention to cause really serious bodily harm, rather than an intention to kill, his below average IQ and education, and his plea of guilty. In respect of the section 18 offence, the judge imposed a sentence of detention for public protection with a specified custodial period of 5 years.

The Period Leading up to the 1^st Periodic Review of Tariff

20. Initially the offender was maintained in HMP Moorlands
21. Thereafter, the offender completed an ETS course on 16 October 2008, a Victim Awareness Course on 15 March 2009, and a CALM course on 4 March 2010. He gained positive assessments in relation to each of these courses.
22. However, at a sentencing planning meeting held on 1 July 2010, after his removal to HMP Full Sutton, where he was a category A prisoner, it was concluded that the offender presented, "…a HIGH risk of reconviction on all measures. He is assessed as a VERY HIGH risk of serious harm to the public through engagement in violent criminal activity. The main risk factor related to this risk is alcohol abuse and problem-solving skill influenced by other anti-social peers."
23. In the following year, a sentencing planning meeting, dated 21 September 2011, noted that the offender had completed Drug and Alcohol work and Education, but maintained the assessment that he presented a high risk to the public in the community.
24. In November and December of 2011, the offender was interviewed by the forensic psychologist in training, Hayley Sharp, and I note that it was during the course of these interviews, that the offender acknowledged that, contrary to his previous explanation, he had picked up the knife from his home prior to committing the offences. Hayley Sharp produced a report, dated 20 January 2012, in which she noted that the offender had been assessed as being in the early stages of change for the majority of his risk factors. She stated that the offender, "...recognises that he has experienced significant difficulties managing his emotions and recognises the link between this and his use of violence; he has developed strategies to manage this more effectively, but his efforts are not yet consistently effective and there are instances of poor emotional control manifesting in custody still." In these circumstances, she was of the opinion that the offender still presented a high risk of violently reoffending.
25. Later that year the offender was interviewed by the chartered clinical psychologist, Dr Louise Gee, and she provided a report dated 25 May 2012. She noted the offender's desire to work with young people, when he was released from prison, in order to seek to make them see the dangers of crime. Moreover, he stated that he wanted to join Alcoholics Anonymous in order to assist with what he considered was his alcoholism. Dr Gee also noted that the offender considered that his conversion to Islam had assisted with his ability to deal better with people, to be more polite and respectful to them. Dr Gee considered that due to the overall improvement that the offender had shown in his behaviour at prison, it would be better for him to be maintained in a lower category prison. However, she noted that the offender was realistic as to his prospects for eventual release, in that he appreciated that he would not get parole at his first application, "…and he anticipates it will take a further few years before this is forthcoming. He is optimistic that he will be released in his mid-30's and feels that at this point, he will still have a lot of positive life ahead of him."
26. A sentencing planning meeting held on 26 September 2012, noted that the offender had given Hayley Sharp an in-depth account of his offending, and had made constructive use of his time over the previous 12 months, including his attendance at cookery and mathematics classes. However, his risk to the public in the community was still assessed as being high.
27. It was during the following year, 2013, that, in the light of a report (dated 5 June 2013) by the forensic psychologist, Cheryl Coleman, the offender's risk to the public in the community was re-determined as being medium, and by the date of the next sentencing planning meeting, 2 September 2013, the offender had been recategorized as a category B prisoner. In her report, Cheryl Coleman had noted that by this time the offender, "…worked to develop insight into each of the areas of risk that have been highlighted as relevant to his offending history.", and that as there was no further structured work that was recommended he complete, he would benefit from being given the opportunity to practice his skills in a supportive environment such as a Psychologically Informed Planned Environment (PIPE).

The 1^st Periodic Review of Tariff

28. In his written decision dated 17 November 2014, Wilkie J. noted that the offender's security risk had been downgraded from category A to category B, and that he had not accrued any adjudications since June 2012. Moreover, that he was an Enhanced Status prisoner, and was now at HMP Gartree where he was on the PIPE unit. He noted that the offender had made excellent progress which would stand him in good stead when in due course the parole board considers the question of his release on licence. However, in view of the extremely high hurdle that has to be surmounted in order to qualify for a reduction in tariff, and in the light of the remaining work which remained to be done to address the offender's potential risk, he did not feel able to recommend any reduction in tariff at that stage.

Progress since the 1^st Periodic Review of Tariff

29. On 30 November 2014, the offender was re-categorised from category B to category C, due to "evidence of sentence progression and risk reduction."
30. Whilst the offender was still at HMP Gartree, he completed the PIPE scheme, and the subsequent report from the supervising officer, Ben Richards, dated 2 April 2016, makes it clear that he was fully engaged with it. Indeed, not only did the offender attend all the 1:1 and group sessions, but he provided good contributions to the latter, including devising and delivering a structured session, based upon his "Gangs, Think, Learn and Move Away" programme which the offender had written. The feedback from which, both from prisoners and staff, was described as being, "genuinely positive."
31. On 29 April 2015, the offender was moved to HMP The Mount, and thereafter completed a number of courses, including Assertiveness & Decision Making. In October 2015, it was noted that the offender was keen to address concerns surrounding his alcohol abuse, and in April 2016, he successfully completed an Alcohol & Offending Behaviour & Understanding Crime and its effects course. The subsequent written report from the course facilitator, Evelyn Wendleken, makes it clear that the offender demonstrated a very good understanding of the damaging effects of alcohol when abused, and recognises that he cannot drink and needs to stay away from it, as it is "all or nothing."
32. During July and August 2016, the offender attended a RESOLVE programme, and the post-programme report makes it clear that this is a moderate intensity cognitive-behavioural intervention that aims to reduce violence in medium to high risk male offenders. The report noted that the offender attended all of the sessions, and completed each of them to a good standard. He showed a good level of active participation, and areas of strength lay in his openness both during group sessions, and in receiving feedback. He identified two goals to reduce his level of violence, and set himself two further personal goals. Overall, it was considered that the offender had developed his understanding of his risk, and that he had undertaken work which he had not completed before, namely he "…was able to complete plans that were directly linked to triggers in his index offence."
33. Between October and December 2016, the offender completed a course on Family Links, following which the probation officer, Louise Price-James completed a Tariff Assessment Report dated 28 December 2016. When asked to consider whether the offender had showed exceptional progress in custody beyond what is expected of all life prisoners, she highlighted the fact that in addition to playing an active role in his personal development to achieving category C status, he had also engaged with enabling charitable opportunities during his sentence, and prepared a pamphlet about his offence, as well as designing a programme for young people at risk of involvement in gang-related crime.
34. However, Louise Price-James also noted that the offender had an adjudication on 23 August 2015 for disobeying a lawful order to transfer wings. Moreover, after losing his Enhanced Status for poor performance in his workplace at around that time, and then regaining it, he was issued with IEP stage 1 warning on 21 April 2016, when he displayed a very bad attitude towards a member of staff. Subsequently, on 30 November 2016, due to a review of Intelligence Reports concerning the offender's alleged "involvement in the drug culture and threats to other prisoners", he lost his employment as a Health and Well-being Champion.
35. Louise Price-Jones noted that the offender had not received any IEP warning in relation any of these Intelligence Reports, nor had he been referred for adjudication. Moreover, prior to his removal from this role, the offender had gained positive comments from those overseeing his work. These comments included that the offender, "continues to work diligently, communicates well with myself as H&WC lead by providing me with regular updates of what work he's been doing. He consistently looks for areas to branch into as a H&WC e.g. attending the canteen meeting as well as performing beyond what's asked of him in his job role e.g. developing a pamphlet to be given to new receptions during inductions", and "Continues to work as a Health and Wellbeing Champion and works well individually and as part of the team. He is a proactive and positive worker with a good awareness of the issues prisoners face. He communicates well with staff members and prisoners and tackles a problem in a logical way that regularly results in a solution. He attends training, meetings and supervisions when scheduled to and will always let myself or his supervisor know if he's unable to make. He is a very committed and hard worker." Indeed, a letter from Chris MacKay, the Head of Health and Rehabilitation Services, dated 30 November 2016, acknowledges that the offender brought a considerable amount of knowledge and enthusiasm to the group, and that many of his ideas benefitted the present development of the programme. These sentiments were echoed in the letter from Roseanna Bayfield, the Health and Wellbeing Champion Lead, dated 4 January 2017.
36. It was also noted that between May and October 2016 the offender underwent three voluntary oral swab drug tests, all of which tested negative for the presence of drugs.
37. An OASys Assessment report dated 28 December 2016 noted that the offender had now acknowledged that for a period of about 6 months prior to the offence, he had carried a knife with him, due to a previous attack on him. It was confirmed that the offender's risk to the public in the community remained at medium, and that generally he had no problems with his dealing with staff, in that he is polite, speaks openly and fully complies with the rules placed on him.
38. A further Tariff Assessment Report dated 5 January 2017 by Gary Bartlett stated that he has known the offender for over 10 years, and agrees with Louise Price-Jones' conclusion that he has made consistent and steady progress. However, in addition to this he stated that, "I have been particularly impressed by his level of victim empathy and his desire to involve himself in restorative justice. He also impresses in his efforts to deter other young people from following his journey into the criminal justice system via the group offending work he has completed."
39. The most recent Tariff Assessment Report dated 27 January 2017 by the Discipline Officer, Officer Tann, who states that since his arrival on Dixon Wing, the offender has shown a mature attitude towards staff, and he has encountered very few discipline problems with him. Moreover, that when the offender has an issue, he has talked to staff about his problem with an aim of sorting it out with the least fuss. Officer Tann also notes that the offender has shown a significant amount of victim empathy, and has been proactive in seeking to pass on his own life experiences to other young people who may be influenced to indulge in crime, with a view to dissuading them from such a life, including his efforts to develop his own course on fighting violent gang-related knife crime.
40. In addition to letters from two family members, who remark on the more recent beneficial alteration in the offender's attitude, there is a letter from Patrick Mighty, a Disruption Officer/Youth Justice Officer with Newham Youth Offending Team, dated 15 September 2016. It is apparent from this letter that, in addition to devising the "Gangs, Think, Learn and Move away" programme, the offender has also written a book entitled, "How I changed my family's and my unborn child's lives and gave another family a life of grief and loss in 39 seconds." Mr Mighty, states that in seeking to operate courses designed to deter other young people in a similar position from pursuing a life of violent crime, both he, the St Johns Ambulance service, and the Police, have used this book, and other associated material, to good effect in those courses.

Conclusion

41. These were appalling offences committed by the offender, and no amount of time which he spends in custody is likely to assuage the grief and understandable resentment felt by the deceased's family. Moreover, in view of his previous convictions, it cannot be said that the offences were totally out of character. As the report from the consultant forensic psychiatrist, Dr Lord, portrays, the offender was, at that time, a very dangerous young man, psychopathic in nature, out of control after consuming alcohol and prone to carrying knives.
42. It is from that very low base that the offender's progress in custody falls to be judged. In many ways, it is fortunate for the offender that his offending took place whilst he was still relatively young, prior to the ongoing effect of those risk factors becoming so entrenched within his character that any amount of cognitive behavioural work may have been insufficient to turn the tide.
43. However, since the offender's reception into the prison system, the authorities have expended a considerable amount of time and resources upon working with the offender, and, in particular, undertaking a significant amount of cognitive behavioural work with him. Such work is not always successful, and much depends upon the attitude of the prisoner, as some chose not to benefit from it. Fortunately, from what I have read about the offender, he is not one of those who has chosen not to benefit from such work, rather he is one who gradually, over the years, has gained sufficient insight to appreciate the benefits to both himself and society, of undertaking this work. It is clear that he has done so with enthusiasm and application, and is now making a very positive contribution to HMP The Mount.
44. It is true that over the years, the offender has had a number of adjudications against him. However, the most troubling of these, namely those caused by aggression, mostly occurred during the initial stages of his period in custody at HMP Moorland. Indeed, the last adjudication was over two years ago, and this was for disobeying a lawful order to transfer wings. I was concerned about the IEP warning which the offender received in April of last year, and there are the intelligence reports which, if they are true, are of concern. However, I note that not only has the offender received no IEP warnings in respect of any of them, but all of his subsequent drug tests have been negative. Moreover, those directly involved in Health and Wellbeing, speak highly and warmly of the offender's attitude and commitment to this aspect of his work.
45. Understandably, at the commencement of his period in custody, the offender was a category A prisoner. Moreover, his risk of causing serious harm to the public in the community, was correctly considered to be high. In contrast to this situation, not only is it considered that this latter risk has been reduced to medium, but the offender has, since the 1^st periodic review of tariff, been reduced to being a category C prisoner, and his Enhanced Status has been restored.
46. All of these matters reflect what has been achieved both by the authorities and in particular the offender as a result of the significant amount of cognitive behaviour work that has been undertaken over the last few years. In particular, I note that since the 1^st periodic review of tariff, the offender has been completely open about the circumstances surrounding the offences, and in particular the fact that prior to their occurrence, he habitually carried a knife. His level of victim empathy is now said to be impressive, his dealings with staff is said to be polite, and it is of particular value that he not only understands the contribution that the consumption of alcohol made to the commission of his offending, but has understood that the only guaranteed protective measure in relation to alcohol is complete abstinence.
47. Some aspects of the offender's progress, although positive, may not be considered to be out of the ordinary. However, given the low base from which the offender commenced his period in custody, the extent and depth of the insight is now impressive. Moreover, I am particularly struck by the level of self-motivation which he has shown in relation to his commitment to teach others in similar situations to that in which he found himself prior to his offending, about the risks of getting involved with gangs, knives and violence, not only to themselves, but in particular the effect upon others. Not only has he written about this, both in his book and his programme, but he has already provided a course based upon this programme whilst in custody, and intends to continue this type of work if, and when, he is eventually released from custody. Moreover, I note that his work has already been used in the community, due to his proactive approach to the Newham Youth Offending Team.
48. I have given careful consideration to the relevant criteria in this case, in particular in the light of the evidence that has been gained since the 1^st periodic review of tariff. In my judgment, given the very low base from which the offender commenced his journey through the custodial system, not only do I consider that his progress has been exceptional, but that it was not something that could have been foreseen. On the contrary, given the circumstances of the offence, and those of the offender at the time, one would not have been optimistic of the outcome. However, the offender has responded well to the extensive work undertaken by the authorities with him, and in particular his proactive work in relation to assisting in the provision of preventative offending programmes to others in similar situations to himself, is evidence of the significant amount of success in his rehabilitation.
49. Clearly there is more rehabilitative work to be undertaken by the offender, and he needs to continue to prove its effectiveness within the custodial sentence for a significantly longer period of time. Moreover, his eventual release, if at all, will be entirely a matter for the parole board. However, in recognition of his exceptional and unforeseen progress to date, I consider that his tariff should be reduced by a period of 6 months.