In short

The Court of Appeal heard four appeals together against minimum terms fixed under the Criminal Justice Act 2003 for mandatory life sentences for murder. The lead judgment explains how trial judges should approach those minimum terms after the Act transferred the task from the Home Secretary to the courts, including the transitional rules that cap terms for murders committed before the new regime but sentenced afterwards.

Melvin Sullivan, Martin Gibbs, and father-and-son Derek and Barry Elener had each been convicted of murder and given specified minimum custodial periods before parole could be considered. Sullivan and the Eleners challenged the length of their terms and the transitional guidance used at sentencing. Gibbs argued that his 17-year term was too long, particularly because of his mental condition and because the judge had relied on later threatening incidents.

The court dismissed Sullivan's appeal and both Eleners' appeals, but allowed Gibbs's appeal and substituted a 14-year minimum term with credit for time on remand. For transitional cases where the offence was committed after May 2002, it held that judges applying the statutory cap should use the May 2002 practice statement rather than earlier guidance that had excluded it.

Decision

Sullivan's appeal against minimum term dismissed. [59]
Gibbs's appeal against minimum term allowed, on terms that substitute minimum term of 14 years with credit for time on remand. [71]
Derek Elener's appeal against minimum term dismissed. [88]
Barry Elener's appeal against minimum term dismissed. [88]

Issues

For a murder committed after May 2002 but sentenced after the Criminal Justice Act 2003 came into force, should the judge applying paragraph 10 of Schedule 22 use the May 2002 Practice Direction rather than the Lord Chief Justice's letter of 16 December 2003?
Yes. The 16 December 2003 letter should no longer be followed for such offenders; the judge determining the minimum term should apply the Practice Direction of 31 May 2002 so that the transitional cap does not produce a heavier penalty than would have been likely under the Secretary of State's earlier practice. [42]
Was the 13 years and 88 days minimum term imposed on Sullivan manifestly excessive?
No. The appropriate minimum term would be about 14 years whichever practice guidance was used, and the correct deduction for time in custody had been made; the appeal is dismissed. [59]
Could the sentencing judge take account of threatening incidents two months after Gibbs's offence when fixing the minimum term?
No. Reference to those later incidents would not be justifiable if relied on to illustrate the risk Gibbs posed, because public protection after the minimum term is for the Parole Board rather than the tariff judge. [70]
Was the 17-year minimum term imposed on Gibbs manifestly excessive?
Yes. Seventeen years did not sufficiently reflect Gibbs's mental disability; the court substituted a minimum term of 14 years, with credit for any period spent on remand. [71]
Was Derek Elener's 25-year minimum term manifestly excessive?
No. The crimes justified starting points of thirty years under Schedule 21 and the practice statements; the reduction to 25 years was justified by his plea and age, and his appeal is dismissed. [86]
Was Barry Elener's 27-year minimum term manifestly excessive?
No. Thirty years was the appropriate starting point and the trial judge had fully recognised the available mitigation in fixing the minimum term; his appeal is dismissed. [87]

Reasoning

For transitional offenders the judge must first assess the appropriate period under Schedule 21 and then reduce it as necessary to comply with paragraph 10 of Schedule 22. [24]
The best guide to the Secretary of State's practice before December 2002 is the practice directions issued by the Lord Chief Justice, because judicial recommendations were usually followed. [26]
On appeal against a minimum term the appellant must show, as with any other sentence appeal, that the term is manifestly excessive. [46]

Written by AI from the judgment on 26 August 2026. Each ¶ links to the paragraph it came from. Read those before relying on it.

▶Statutes Cited13

▶Case Law Cited4

▶Cited By17

Sullivan, R v [2004] EWCA Crim 1762

[2004] EWCA Crim 1762

Case No 200401971 B3; 200400619 B3; 200402222 A3; 200402117 A3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 8th July 2004

Before

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

LORD JUSTICE JUDGE DEPUTY CHIEF JUSTICE

OF ENGLAND AND WALES

MR JUSTICE HOLLAND

MR JUSTICE ASTILL

MR JUSTICE GROSS

Between

ReginaCrown

Melvin Terrence SullivanDefendant

Between

ReginaCrown

Martin Godwin GibbsDefendant

Between

ReginaCrown

Barry ElenerDefendant

Between

ReginaCrown

Derek ElenerDefendant

Patricia Lynch QC and Katharine Moore for Sullivan

Rex Tedd QC and Sally Hobson for Crown in Sullivan

Edward Fitzgerald QC and Paul Taylor for Gibbs

Nicholas Hilliard QC for Crown in Gibbs

Ben Nolan QC and Oliver Jarvis for Barry Elener

Gareth Evans QC and Richard Gioserano for Derek Elener

Robert Smith QC for Crown in Barry and Derek Elener

Hearing Hearing dates : 8th June 2004

JUDGMENT

The Lord Chief Justice:

[1]The Criminal Justice Act 2003 (the “2003 Act”) contains provisions of great significance to the sentencing of offenders. This judgment deals with the provisions dealing with offenders sentenced to life imprisonment for murder. It provides what is intended to be general assistance as to the approach that courts should adopt when applying those provisions. It does this in the context of 4 appeals (that we have heard together) against the minimum periods that the appellants had been ordered to serve before they could be considered for release on licence by the Parole Board under the early release provisions contained in Chapter 7 of the 2003 Act.

[2]The catalyst for the need to include the early release provisions in the 2003 Act was the decision of the House of Lords in R (Anderson) v Secretary of State

[2003] 1 AC 837

25 November 2002. Before the decision in Anderson the minimum period in the case of those sentenced to a mandatory life sentence was determined by the Secretary of State after considering recommendations made privately by the trial judge and the Lord Chief Justice. Following a series of decisions of the European Court of Human Rights (the ECHR), in Anderson the House of Lords made it clear that this involvement of the Secretary of State was unacceptable and contravened

Article 6 of the European Convention on Human Rights

. This was because the process of determining a minimum period is considered to be indistinguishable from that of determining a sentence. Both tasks should be performed by a judge and not by a member of the Executive. The Secretary of State after that decision ceased to determine minimum periods though trial judges continued to make recommendations until the new provisions came into force.

[3]The decision in Anderson does not affect the fact that the mandatory sentence for murder remains life imprisonment. Although an offender may be released on licence, and the minimum period affects the date on which this may happen, the offender remains at risk of being returned to prison for the rest of his life. The sentence of life imprisonment has been treated, both as matter of reality and for many legal purposes, as containing two periods. The initial period, known as the minimum term, that is a period to be served by the offender as a punishment and a deterrent, and a subsequent period during which the offender can, but may not, be released on licence by the Parole Board if the Board decides that the safety of the public does not require the offender to remain in prison. (This is very much a simplification of a position that developed by stages over many years chronicled in a number of judgments. There is a brief history set out in Anderson (at p 842/5).)

[4]The 2003 Act transferred the role of the Secretary of State in determining the minimum term to the trial judge. The relevant statutory provisions came into force on 18th December 2003.

[5]To assist trial judges to make their recommendations under the pre-Anderson practice and to encourage greater consistency, the present and previous Lord Chief Justices had provided general guidance to sentencing judges as to the approach to be adopted. The 2003 Act, for the first time, includes the guidance in an Act of Parliament in section 269(5) and Schedule 21 in the form of “general principles”.

[6]The general principles in Schedule 21 apply to determinations made after 18 December 2003 even if the offence was committed before that date. The 2003 Act therefore contains transitional provisions that are intended to ensure that an offender is not made subject to a determination which contravenes Articles 5 and 7.1 of the ECHR. Under Article 5 every one has the right of liberty and security of person and Article 7.1 prohibits the imposition of a heavier penalty “than the one that was applicable at the time the criminal offence was committed”.

[7]We now turn to consider the relevant provisions of the 2003 Act. Before considering these in detail, it is desirable to make two general points. The first is that, while all murders are grave crimes, because murder can be committed without the offender having an intention to kill, an intention to inflict grievous bodily harm being sufficient, the offence covers a particularly broad spectrum of gravity. For example, besides the sadistic killer, it covers mercy killing by a caring member of the deceased’s family responding to a plea to bring terminal suffering to a more rapid conclusion. Minimum terms can range from whole life to even less than 8 years. The second is that in order to compare a minimum term with a determinate sentence it is necessary approximately to double the determinate sentence. This is because in the case of a sentence of a fixed duration the offender is either released or eligible for parole at the half way stage. This is the position of a life prisoner only after the whole of the minimum term has been served.

The Statutory Provisions

[8]For present purposes we shall start with the general provisions of Chapter 1 of Part 12 of the 2003 Act, which although not yet in force provides valuable insight into the overall intention of Parliament. The heading is “General Provisions About Sentencing”, and under “Matters to be taken into account in sentencing”, continues as follows:

“142 Purposes of sentencing (1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing- (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences. (2) Subsection (1) does not apply- (a) in relation to an offender who is aged under 18 at the time of conviction, (b) to an offence the sentence for which is fixed by law.” (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences. (a) in relation to an offender who is aged under 18 at the time of conviction, (b) to an offence the sentence for which is fixed by law.”

[9]The sentence for murder is, of course, fixed by law so section 142 does not apply to the determination of the minimum period in the case of a life sentence. However, the section is still important. This is because it underlines the very different task that a judge performs when deciding the length of a minimum term, having imposed a life sentence, from the task that he performs when he decides what should be the length of a determinate sentence. In the case of the minimum term he is only directly concerned with “seriousness”, the protection of the public being provided by the imposition of the life sentence. After the minimum term has been served, protection of the public becomes the responsibility of the Parole Board, who then decide when it is safe to release the offender on licence. As to seriousness, section 143 is relevant. It provides: “143 Determining the seriousness of an offence(1) In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused.

(2) In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to- (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.

(3) In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor.

(4) Any reference in subsection (2) to a previous conviction is to be read as a reference to- (a) a previous conviction by a court in the United Kingdom, or (b) a previous finding of guilt in service disciplinary proceedings.

(5) Subsections (2) and (4) do not prevent the court from treating a previous conviction by a court outside the United Kingdom as an aggravating factor in any case where the court considers it appropriate to do so.” (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction. (a) a previous conviction by a court in the United Kingdom, or (b) a previous finding of guilt in service disciplinary proceedings.

[10]Section 144 deals with the effect of guilty pleas and also applies to setting the minimum term. It provides as follows:

“144 Reduction in sentences for guilty pleas (1) In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court must take into account- (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and (b) the circumstances in which this indication was given.”

The appropriate credit for a plea of guilty should be deducted from the period of the minimum term which the judge would have determined if there had been no plea of guilty. (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and (b) the circumstances in which this indication was given.”

[11]The provisions of the 2003 Act dealing with the calculation of the minimum term commence with section 269. What is important to note about that section is that the judge retains a discretion under subsection (3) to determine the appropriate period. The relevant terms of section 269 are as follows:

“269 Determination of minimum term in relation to mandatory life sentence (1) This section applies where after the commencement of this section a court passes a life sentence in circumstances where the sentence is fixed by law. [That is after 18th December 2003] (2) The court must, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as “the early release provisions”) are to apply to the offender as soon as he has served the part of his sentence which is specified in the order. (3) The part of his sentence is to be such as the court considers appropriate taking into account- (a) the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it, and (b) the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.”

We have emphasised the words underlined because they make it clear what is the principal task of the court. It is to determine the period the court considers appropriate. Thus notwithstanding the statutory guidance, the decision remains one for the judge. While the provision requiring credit to be given for periods on remand is new, in practice it will not make any practical difference to the result so far as the offender is concerned since credit would have been given administratively under the previous practice. “(4) If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender.” [If the judge decides that subsection (4) applies then no minimum term should be identified and the early release provisions do not apply to the offender. This results in the offender serving a whole life term.] “(5) In considering under subsection (3) or (4) the seriousness of an offence (or of the combination of an offence and one or more offences associated with it), the court must have regard to- (a) the general principles set out in Schedule 21, and (b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21.” (a) the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it, and (b) the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.” “(4) If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender.” “(5) In considering under subsection (3) or (4) the seriousness of an offence (or of the combination of an offence and one or more offences associated with it), the court must have regard to- (a) the general principles set out in Schedule 21, and (b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21.”

[12]It is important to note that the judge complies with the section if he has “regard” to the principles set out in the Schedule. As long as he bears them in mind he is not bound to follow them. However if he does not follow the principles he should explain why he has not done so.

[13]The duty to give reasons is set out in section 270 that provides:

“Section 270 Duty to give reasons (1) Any court making an order under subsection (2) or (4) of section 269 must state in open court, in ordinary language, its reasons for deciding on the order made. (2) In stating its reasons the court must, in particular- (a) state which of the starting points in Schedule 21 it has chosen and its reasons for doing so, and (b) state its reasons for any departure from that starting point.” (a) state which of the starting points in Schedule 21 it has chosen and its reasons for doing so, and (b) state its reasons for any departure from that starting point.”

[14]Section 275 of the Act makes the necessary amendments to the duty to release certain life prisoners that is contained in Section 28 of the Crime (Sentences) Act 1997.

Schedule 21

[15]Schedule 21 of the Act sets out the new statutory guidance. So far as adults are concerned the Schedule has three starting points. We have identified these points by using bold type in setting out the terms of the Schedule as follows:

“DETERMINATION OF MINIMUM TERM IN RELATION TO MANDATORY LIFE SENTENCE Interpretation 1. In this Schedule- “child” means a person under 18 years; “mandatory life sentence” means a life sentence passed in circumstances where the sentence is fixed by law; “minimum term”, in relation to a mandatory life sentence, means the part of the sentence to be specified in an order under section 269(2); “whole life order” means an order under subsection (4) of section 269. 2. Section 28 of the Crime and Disorder Act 1998 (c. 37) (meaning of “racially or religiously aggravated”) applies for the purposes of this Schedule as it applies for the purposes of sections 29 to 32 of that Act. 3. For the purposes of this Schedule an offence is aggravated by sexual orientation if it is committed in circumstances falling within subsection (2)(a)(i) or (b)(i) of section 146. Starting points 4. (1) If- (a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and (b) the offender was aged 21 or over when he committed the offence, the appropriate starting point is a whole life order. (2) Cases that would normally fall within sub-paragraph (1)(a) include- (a) the murder of two or more persons, where each murder involves any of the following- (i) a substantial degree of premeditation or planning, (ii) the abduction of the victim, or (iii) sexual or sadistic conduct, (b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation, (c) a murder done for the purpose of advancing a political, religious or ideological cause, or (d) a murder by an offender previously convicted of murder. 5. (1) If- (a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and (b) the offender was aged 18 or over when he committed the offence, the appropriate starting point, in determining the minimum term, is 30 years. (2) Cases that (if not falling within paragraph 4(1)) would normally fall within sub-paragraph (1)(a) include- (a) the murder of a police officer or prison officer in the course of his duty, (b) a murder involving the use of a firearm or explosive, (c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death), (d) a murder intended to obstruct or interfere with the course of justice, (e) a murder involving sexual or sadistic conduct, (f) the murder of two or more persons, (g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or (h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence. 6. If the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph 4(1) or 5(1), the appropriate starting point, in determining the minimum term, is 15 years. 7. If the offender was aged under 18 when he committed the offence, the appropriate starting point, in determining the minimum term, is 12 years. Interpretation “child” means a person under 18 years; “mandatory life sentence” means a life sentence passed in circumstances where the sentence is fixed by law; “minimum term”, in relation to a mandatory life sentence, means the part of the sentence to be specified in an order under section 269(2); “whole life order” means an order under subsection (4) of section 269. Starting points (a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and (b) the offender was aged 21 or over when he committed the offence, the appropriate starting point is a whole life order. (2) Cases that would normally fall within sub-paragraph (1)(a) include- (a) the murder of two or more persons, where each murder involves any of the following- (i) a substantial degree of premeditation or planning, (ii) the abduction of the victim, or (iii) sexual or sadistic conduct, (b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation, (c) a murder done for the purpose of advancing a political, religious or ideological cause, or (d) a murder by an offender previously convicted of murder. (a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and (b) the offender was aged 18 or over when he committed the offence, the appropriate starting point, in determining the minimum term, is 30 years. (a) the murder of a police officer or prison officer in the course of his duty, (b) a murder involving the use of a firearm or explosive, (c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death), (d) a murder intended to obstruct or interfere with the course of justice, (e) a murder involving sexual or sadistic conduct, (f) the murder of two or more persons, (g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or (h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence. Aggravating and mitigating factors 8. Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point. 9. Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order.”

Starting points

[16]The Schedule sets out a well established approach to sentencing. It makes clear ( in paragraph 9) that despite the starting points, the judge still has a discretion to determine any term of any length as being appropriate because of the particular aggravating and mitigating circumstances that exist in that case. This discretion must, however, be exercised lawfully and this requires the judge to have regard to the guidance set out in Schedule 21, though he is free not to follow the guidance if in his opinion this will not result in an appropriate term for reasons he identifies. His decision is subject to appeal either by the offender or on Attorney General’s Reference in accordance with sections 270 and 271. “10. Aggravating factors (additional to those mentioned in paragraph 4(2) and 5(2)) that may be relevant to the offence of murder include-(a) a significant degree of planning or premeditation,

(b) the fact that the victim was particularly vulnerable because of age or disability,

(d) the abuse of a position of trust,

(e) the use of duress or threats against another person to facilitate the commission of the offence,

(f) the fact that the victim was providing a public service or performing a public duty, and

(g) concealment, destruction or dismemberment of the body. 11. Mitigating factors that may be relevant to the offence of murder include- (a) an intention to cause serious bodily harm rather than to kill, (b) lack of premeditation, (c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability, (d) the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation, (e) the fact that the offender acted to any extent in self-defence, (f) a belief by the offender that the murder was an act of mercy, and (g) the age of the offender.” It is clear from the presence of the word “include” in paragraphs 10 and 11 that the listed factors are not exhaustive of what can be mitigating and aggravating factors. Finally, paragraph 12 provides as follows. “12 Nothing in this Schedule restricts the application of- (a) section 143(2) (previous convictions), (b) section 143(3) (bail), or (c) section 144 (guilty plea).” (a) a significant degree of planning or premeditation, (b) the fact that the victim was particularly vulnerable because of age or disability, (c) mental or physical suffering inflicted on the victim before death, (d) the abuse of a position of trust, (e) the use of duress or threats against another person to facilitate the commission of the offence, (f) the fact that the victim was providing a public service or performing a public duty, and (g) concealment, destruction or dismemberment of the body. (a) an intention to cause serious bodily harm rather than to kill, (b) lack of premeditation, (c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability, (d) the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation, (e) the fact that the offender acted to any extent in self-defence, (f) a belief by the offender that the murder was an act of mercy, and (g) the age of the offender.” (a) section 143(2) (previous convictions), (b) section 143(3) (bail), or (c) section 144 (guilty plea).”

[17]The transitional provisions are set out in Schedule 22. Schedule 22 deals with three different situations:(i) existing prisoners who in respect of a life sentence had prior to 18th December 2003 been notified by the Secretary of State of the minimum period they were to serve.

(ii) existing prisoners on that date not so notified by the Secretary of State; and

(iii) offenders sentenced to life imprisonment after 18th December 2003.

[18]The first two categories of offenders may have been sentenced to life imprisonment at any date prior to 18 December 2003. They do not have an immediate right of appeal. Instead, in the case of category (i) they are “existing prisoners”, as defined in Schedule 22 to the 2003 Act and may apply to the High Court for a review of the minimum period which has been notified by the Secretary of State or of his determination that they should never be released (Schedule 22 paras. 2 to 4). In the case of category (ii), the Secretary of State must refer the case to the High Court for an order to be made under subsection (2) or (4) of section 269 of the 2003 Act (Schedule 22 paras. 5 to 8). In the case of categories (i) and (ii), paragraph 14 of Schedule 22 provides for a right of appeal to the Court of Appeal Criminal Division from the High Court Judge’s decision.

[19]Section 269 (1) provides that that section only applies where the life sentence is imposed after the commencement of that section (18th December 2003). In the case of the first two categories of cases to which the transitional provisions apply the sentences will have been passed prior to that date. However, in the case of both categories the judge is required to have regard to the general principles set out in Schedule 21 (Schedule 22 paragraphs 4(1) and 7) and in respect of category (ii) there is a cap placed on the minimum term that can be determined in similar terms to that contained in paragraph 10 to which we refer later.

[20]In the case of category (iii), section 9 (1) of the Criminal Appeal Act 1968 provides that: “A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence…”.

[21]Section 271 of the 2003 Act amends section 9 of the Criminal Appeal Act 1968 to insert section 1(A), which provides that:

“In subsection (1) of this section, the reference to a sentence fixed by law does not include a reference to an order made under subsection (2) or (4) of section 269 of the Criminal Justice Act 2003 in relation to a life sentence … that is fixed by law.”

The effect of the amendment is that a person who is sentenced to mandatory life imprisonment after the commencement date of 18 December 2003 may apply to the Court of Appeal for leave to appeal against the minimum term set by the trial Judge (or against an order under Section 269 (4) that the early release provisions are not to apply).

[22]These appeals deal with the third category and the transitional provisions relevant to their situations are as follows:

“SCHEDULE 22 MANDATORY LIFE SENTENCES: TRANSITIONAL CASES Sentences passed on or after commencement date in respect of offences committed before that date 9. Paragraph 10 applies where- (a) on or after the commencement date a court passes a life sentence in circumstances where the sentence is fixed by law, and (b) the offence to which the sentence relates was committed before the commencement date. 10.

(b) ”

MANDATORY LIFE SENTENCES: TRANSITIONAL CASES Sentences passed on or after commencement date in respect of offences committed before that date (a) on or after the commencement date a court passes a life sentence in circumstances where the sentence is fixed by law, and (b) the offence to which the sentence relates was committed before the commencement date. (a) may not make an order under subsection (2) of section 269 specifying a part of the sentence which in the opinion of the court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify as mentioned in paragraph 2(a), and (b) may not make an order under subsection (4) of section 269 unless the court is of the opinion that, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to give the prisoner a notification falling within paragraph 2(b).”

The Difficulties Created By The Transitional Provisions In Paragraph 10 of Schedule 22

[23]Paragraph 10 only applies to the third category of offender with which these appeals deal. Its purpose is plain. It is to avoid the offender having a minimum term determined that offends the requirements of Articles 5 and 7.1 of the ECHR to which we referred at the beginning of this judgment. It prohibits a heavier penalty being imposed than could be imposed at the time the offence was committed. As the jurisprudence of the European Court of Human Rights makes clear, a minimum term is a “penalty” for this purpose. So the minimum term calculated in accordance with the guidance contained in Schedule 21 must not exceed that which would have been capable of being imposed at the time the offence was committed.

[24]It is also clear that the approach a judge is intended to adopt in determining the minimum term for this category of offender under the 2003 Act falls into two stages. The judge has to initially assess what would be the appropriate period applying Schedule21. Having ascertained that period he then reduces the period so far as is necessary in order to comply with the requirements of paragraph 10 of Schedule

22. This is intended to avoid any question of a breach of Articles 5 and 7.1.

[25]As to the first stage, the judge should have no particular difficulty in applying Schedule 21. Indeed the result in the majority of cases of the determination should not be materially different under Schedule 21 from that which used to be adopted by the Secretary of State in reaching his decision prior to the Anderson decision. This is for the following reasons:(a) In the great majority of cases, under the former practice the Secretary of State fixed the minimum period in accordance with the recommendation of the trial judge and the Chief Justice or either of them (in the few cases where their recommendations differed).

(b) The statutory guidance only significantly affects the minimum term in the case of the first two starting points; that is when the seriousness of the offence is either exceptionally or particularly high. The difference is not in the length of the term but the breadth of the cases to which they apply because of the examples included in Schedule 21. These are statistically the minority of murders, the great majority (two thirds) being murders where the perpetrators know each other and usually involve a quarrel, revenge, or loss of temper (see the advice of the Sentencing Advisory Panel, (“the Panel”) of 15 March 2002).

(c) The statutory guidance applies the third starting point of 15 years to all other murders apart from those to which the first two starting points apply. This means 15 years applies to a broad range of offences and it leaves the judge free, for reasons we will explain, to determine for this category of offender an appropriate figure very much in the same way, as would have been the case prior to 2003. At that time the figure selected by the Secretary of State, on the information available to the Court was, on average, 14/15 years.

[26]The difference in practice is likely therefore to be confined to the minority of cases where the higher starting points apply. It is in these cases that it will be particularly important to have the provisions of paragraph 10 of Schedule 22 in mind. When paragraph 10 has to be applied, its language creates difficulties on which the Appellants rely. It establishes a ceiling for the minimum terms based on the practice of the Secretary of State prior to December 2002. But what was the practice of Home Secretaries prior to that date? Neither the recommendations made by the judiciary nor the determination of the Secretary of State were usually made public. The Secretary of State took into account information that was not available to the public or the judiciary. In order to assist the Court after the main hearing of these appeals, the Secretary of State provided the Court and the parties with considerable information in the form of statistics and records and correspondence between the Lord Chief Justice and the Home Office. This information makes it clear that the best guide to what would have been the practice of the Secretary of State is the Practice Directions issued, respectively, by the present Chief Justice and his predecessor, Lord Bingham of Cornhill. This is because it can reasonably be assumed that the judiciary and in particular the Chief Justice will have applied the relevant Practice Direction while it was in force and in a high percentage of the cases it was their recommendations that the Secretary of State followed.

[27]There remain at least two more complications. First, as has been made clear by the Secretary of State, in the most serious cases he tended to select a higher figure than that indicated by the judiciary. Secondly, by the date of the decision in Anderson,the Secretary of State had not yet made a determination in a case where the offender was sentenced after the date of the latest Practice Direction ( 31st May 2002).

The Contents of The Relevant Practice Directions

[28]A letter was sent by Lord Bingham CJ on 10th February 1997 to the judges who had to make recommendations as to minimum terms. We should refer to that letter. “As all recipients of this letter are very well aware, the imposition of a mandatory life sentence for murder is under current arrangements followed by a three-stage procedure to fix the term to be served by the convicted defendant”. [Lord Bingham then makes general remarks describing the role of the trial judge and the Lord Chief Justice and then continues] “While I would not, therefore, wish to seek to bind trial judges in any way, I think it may be helpful to outline my personal approach. My current practice is to take 14 years as the period actually to be served for the “average”, “normal” or “unexceptional” murder. This is longer than the period (12 years) which Lord Lane took as his norm 10 years ago. I take this higher norm because I think the level of sentence may in the past, with some reason, have been considered too low; I think the recommended level has risen over the last decade; it is necessary to keep an eye, for purposes of comparison, on sentences for other offences (such as the worst drug offences); and I think the deliberate taking of human life must continue to carry a very heavy penalty. I regard a number of factors as capable, in appropriate cases, of mitigating the normal penalty. Without seeking to be comprehensive I would list the following factors: 1. Youth. 2. Age (where relevant to physical capacity on release or the likelihood of the defendant dying in prison). 3. Sub-normality or mental abnormality. 4. Provocation (in a non-technical sense), or an excessive response to a personal threat. 5. The absence of an intention to kill. 6. Spontaneity and lack of premeditation (beyond that necessary to constitute the offence: e.g. a sudden response to family pressure or to prolonged and eventually insupportable stress). 7. Mercy killing. 8. A plea of guilty, or hard evidence of remorse or contrition. Without again seeking to be comprehensive, I would list the following factors as likely to call for a sentence more severe than the norm: 1. Evidence of a planned, professional, revenge or contract killing. 2. The killing of a child or a very old or otherwise vulnerable victim. 3. Evidence of sadism, gratuitous violence, or sexual maltreatment, humiliation, or degradation before the killing. 4. Killing for gain (in the course of burglary, robbery, blackmail, insurance fraud, etc). 5. Multiple killings. 6. The killing of a witness or potential witness to defeat the ends of justice. 7. The killing of those doing their public duty (policemen, prison officers, postmasters, firemen, judges, etc). 8. Terrorist or politically motivated killings. 9. The use of firearms or other dangerous weapons, whether carried for defensive or offensive reasons. 10. A substantial record of serious violence. 11. Macabre attempts to dismember or conceal the body. The fact that a defendant was under the influence of drink or drugs at the time of the killing is so common that I am inclined to treat it as neutral. But in the not unfamiliar case in which a married couple, or two derelicts, or two homosexuals, inflamed by drink, indulge in a violent quarrel in which one dies, often against a background of longstanding drunken violence, I tend to recommend a term somewhat below the norm. … While a recommendation of a punitive term longer than, say, 30 years will be very rare indeed, I do not think one should set any upper limit. Some crimes will certainly call for terms very well in excess of the norm. The third stage is, of course, the final fixing of the punitive or tariff term by the responsible Home Office minister in the light of the judicial recommendations. I do not think we should concern ourselves with this stage at all. If it emerged that the term fixed was fairly consistently higher or lower than the judicial recommendations, that should not in my view cause us to alter our practice unless on further reflection it seemed to us right to do so. I think it important that our input into the procedure should, so far as possible, be independent of what may prove to be transient phases of penal fashion or popular opinion”. “While I would not, therefore, wish to seek to bind trial judges in any way, I think it may be helpful to outline my personal approach. My current practice is to take 14 years as the period actually to be served for the “average”, “normal” or “unexceptional” murder. This is longer than the period (12 years) which Lord Lane took as his norm 10 years ago. I take this higher norm because I think the level of sentence may in the past, with some reason, have been considered too low; I think the recommended level has risen over the last decade; it is necessary to keep an eye, for purposes of comparison, on sentences for other offences (such as the worst drug offences); and I think the deliberate taking of human life must continue to carry a very heavy penalty. I regard a number of factors as capable, in appropriate cases, of mitigating the normal penalty. Without seeking to be comprehensive I would list the following factors:

[29]Lord Bingham only identified two periods, a higher period than 30 years which would only be recommended in very rare cases and the 14 years “norm”. He did not, in relation to the 14 years, explain what was an “average” or “normal” or “unexceptional murder”, but an indication of what he was including in those terms is provided by his description of the factors he identified as being capable of mitigating and aggravating the normal period. In particular the reference included in mitigating factor (5) to the absence of an intention to kill and in mitigating factor (6) to lack of premeditation suggest that the 14 year period was intended to cover more serious murders, since if intentional and premeditated murders were not included (5) and (6) would be inappropriate mitigating factors.

[30]The next statement to which it is necessary to refer primarily relates to juveniles and the conducting of the same process when they are sentenced to be detained during Her Majesty’s pleasure. It is in the form of a PracticeStatement – Life Sentence for Murder ( Lord Woolf, Chief Justice, of the 27 July 2000 reported at [2000] 4 AER 831). Its only significance is that it stated that the amount of time actually to be served by an adult convicted of murder in order to meet the requirements of retribution and general deterrence was to continue to be a period of 14 years before the possibility of release arises.

[31]The next event was the Advice of the Sentencing Advisory Panel of 15 March 2002. The Advice noted that minimum terms recommended varied “widely above and below the 14 year ‘norm’” for an adult. It therefore suggested that it would be helpful for there to be 3 starting points, a higher, middle and lower starting point. The middle figure suggested was 12 years; the higher figure indicated was to be 15 or 16 years; for a lower figure it suggested 8 or 9 years. The middle figure is a different figure from Lord Bingham’s 14 years for a murder of “normal” gravity. However, the middle figure was to cover the case that “arises from a quarrel or loss of temper between two people known to each other” (para.17). The lower figure was for “cases where the offender’s culpability is significantly reduced. Such cases which in any event come close to the borderline between murder and manslaughter, includes …” (para.18). From their respective descriptions of the murders for which Lord Bingham was suggesting 14 years and the Panel was suggesting 12 years, it does appear that the Panel was applying 12 years to a less grave category of murder than that to which Lord Bingham was applying his norm of 14 years. Instead of altering Lord Bingham’s view of what level of punishment, was necessary, the Panel was analysing, supplementing and refining his 14 year period to tackle the fluctuations which the Panel had identified were occurring in practice.

[32]The Panel’s Advice was implemented by a Practice Statement (Crime, Life Sentences) [2002] 3 AER 412,

[2002] 1 WLR 1789

[2002] 2 Cr App R 18

, handed down on 31 May 2002, by Lord Woolf CJ, which was subsequently incorporated as part of the Consolidated Practice Direction [2002] 3 AER 938,

[2002] 1 WLR 2870

, paras 49.2 to 28. This was to be applied by judges in cases in which they made recommendations after 31 May 2002. As the statement is reported it is not necessary to set out all of its terms but, because they are important, we do set out three sections of the Practice Statement. “49.10 Cases falling within this starting point [12 years] will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in para 49.13. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph. [We have emphasised the use of the word exceptionally. Its presence following the Advice of the Panel provides some support for the view that the 12 year starting point is meant to deal with less serious cases than Lord Bingham’s 14 years. The word is there to avoid an offender receiving credit twice for the same mitigating factors which could happen with the selection of a 12 year starting point and then again in the form of a further mitigating factor.] 49.14 Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigating factors, which relate to either the offence or the offender, in the particular case. 49.19 A substantial upward adjustment may be appropriate in the most serious cases, for example, those involving a substantial number of murders, or if there are several factors identified as attracting the higher starting point present. In suitable cases, the result might even be a minimum term of 30 years (equivalent to 60 years) which would offer little or no hope of the offender’s eventual release. In cases of exceptional gravity, the judge, rather than setting a whole life minimum term, can state that there is no minimum period which could properly be set in that particular case. 49.20 Among the categories of case referred to in para 49.13, some offences may be especially grave. These include cases in which the victim was performing his duties as a prison officer at the time of the crime or the offence was a terrorist or sexual or sadistic murder or involved a young child. In such a case, a term of 20 years and upwards could be appropriate.” 49.14 Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigating factors, which relate to either the offence or the offender, in the particular case.

[33]On examination of these passages it can be seen that there are a series of starting points in this Practice Direction: a reduced starting point of 8/9 years for a case with reduced responsibility (para 49.11); a normal starting point of 12 years (para. 49.10); a higher starting point of 15/16, years (para. 49.13); 20 years and over in an especially grave case (para. 49.20); and in an extremely serious case, 30 years can be appropriate; and finally in cases of such exceptional gravity (for which there is to be no minimum term) that there is in effect a whole life term (para. 49. 19).

[34]When the passages we have cited are compared with Lord Bingham’s statement it appears that the normal starting point of 12 years in the later Statement, as in the advice of the Panel, is dealing with a category of cases less grave than those included by Lord Bingham in his 14 years. The difference between the two is a consequence of the fact that the later guidance is more specific than the earlier guidance. The approach to the very serious cases also accords with Lord Bingham’s guidance. While Lord Bingham does not identify as many starting points, it is open to the judge to come to exactly the same decision irrespective of which guidance was followed. In general it is our conclusion, therefore, that while a judge might be helped to be consistent by the more specific guidance contained in the 2002 directions, their general effect is the same. Both give the judge a considerable degree of discretion.

[35]Comparing the position under the statutory and non-statutory guidance and giving due weight to the ample discretion (described in a helpful article by Dr Thomas QC in Archbold News, Issue 3, April 3 p.9 as a “legitimate and extensive discretion in its operation”) given to the judge making the determination by the statutory guidance, we are of the opinion that if there is any difference between them it is not as great as has been supposed. The differences in figures are largely explained by their different structures. Where there are differences they are at the top of the range for the most serious crimes. This, interestingly, is the area in which the records show the Secretary of State could differ significantly from the figure recommended by the judiciary. However, this is still the category of case where it is most likely for the judge to have to consider reducing the figure reached in applying the approach suggested in Schedule 21, relying on paragraph 10 of Schedule 22. The judge would also have to be on his guard against determining a higher figure merely because the starting figure that is taken is greater. This is particularly true where the 15 year figure is the starting point selected. In our judgment it would be wrong to assume that Parliament had intended to raise minimum terms over those recommended by the expert Sentencing Advisory Panel by merely applying the 15 year starting point to all murders other than those whose seriousness is exceptionally or particularly high.

[36]The statutory guidance, unlike the non statutory guidance, first and foremost focuses on the most serious cases and describes them in more detail than it does with respect to the very wide range of offences to which the 15 year period applies. The non-statutory guidance of 2002 on the other hand, while covering the whole range of murders, provides three different starting points for murders covered by the 15 year period in the statutory guidance and the 14 year starting point in Lord Bingham’s guidance. It is more specific and amplifies the considerations that are relevant .

[37]The wider the range of gravity to which a starting point applies, the more important becomes the discretion of the judge to determine the appropriate minimum term within that range. We recognise that the very fact that judges adopt a lower starting point (12 rather than 14 or 14 rather than 15 years) could have the tendency to influence the minimum term decided upon and even though this tendency should be avoided in practice, it may not be.

[38]We turn to the final guidance given to the judiciary which was in the form of a letter sent initially to the judiciary dated 16th December 2003 but later published as a Practice Direction on 18th May 2004. “On 18 December 2003, the transitional provisions contained in Schedule 22 of the Criminal Justice Act 2003 come into force. This is very short notice, so I felt it important to provide guidance as to the practice judges should follow, after that date, when sentencing someone to a mandatory life sentence in respect of an offence committed before that date. [The letter then refers to the relevant provisions of the Act which the judge has to apply and continues:] “The problem created for those sentencing offenders subject to these transitional arrangements, is to know what was the practice followed by the Secretary of State before December 2002. The most recent guidance to judges on minimum terms is set out in my Practice Statement of 31 May 2002. However, it seems that, by December 2002, judicial recommendations made in accordance with that Practice Statement had not yet been acted upon by the Secretary of State. This being the position, judges dealing with these transitional cases should not use the May 2002 Practice Statement as a guide to the Secretary of State’s practice, but should refer to Lord Bingham’s letter of 10 February 1997 and my Practice Statement of 27 July 2000. Since, in the majority of cases, the Secretary of State set minimum terms in line with one or both of the judicial recommendations, these two documents provide the best available evidence of the practice followed by the Secretary of State before December 2002. The only area where the Secretary of State tended to differ from the guidance set out in Lord Bingham’s letter and the Practice Statement of 27 July 2000 was in relation to the gravest murders. In cases involving multiple or serial murder, where there are aggravating circumstances and no compelling mitigating factors, the Secretary of State has set minimum terms at a level considerably higher than judicial recommendations. In such cases, the minimum terms have generally fallen between 30 years and whole life.” [The letter then continues by referring to other statutory provisions to which we have referred already and then adds:] “Having determined the period which should be served for the purposes of retribution, judges should remember to deduct the period which has already been spent in custody in order to arrive at the specified part of the sentence for the purposes of section 269(2). Accordingly, there should also be announced the total period and the period deducted as having been spent in custody. The Secretary of State is aware that I am intending to give this guidance and agrees that I should do so. I enclose Lord Bingham’s letter, my Practice Statement and a copy of the relevant statutory provisions. In due course, I will communicate with you further as to the review of minimum terms in relation to existing prisoners already notified by the Secretary of State (paragraphs 2 to 4 of Schedule 22) and the setting of minimum terms in relation to existing prisoners not yet notified by the Secretary of State (paragraphs 5 to 8 of Schedule 22).” “The problem created for those sentencing offenders subject to these transitional arrangements, is to know what was the practice followed by the Secretary of State before December 2002. The most recent guidance to judges on minimum terms is set out in my Practice Statement of 31 May 2002. However, it seems that, by December 2002, judicial recommendations made in accordance with that Practice Statement had not yet been acted upon by the Secretary of State. This being the position, judges dealing with these transitional cases should not use the May 2002 Practice Statement as a guide to the Secretary of State’s practice, but should refer to Lord Bingham’s letter of 10 February 1997 and my Practice Statement of 27 July 2000. Since, in the majority of cases, the Secretary of State set minimum terms in line with one or both of the judicial recommendations, these two documents provide the best available evidence of the practice followed by the Secretary of State before December 2002. The only area where the Secretary of State tended to differ from the guidance set out in Lord Bingham’s letter and the Practice Statement of 27 July 2000 was in relation to the gravest murders. In cases involving multiple or serial murder, where there are aggravating circumstances and no compelling mitigating factors, the Secretary of State has set minimum terms at a level considerably higher than judicial recommendations. In such cases, the minimum terms have generally fallen between 30 years and whole life.” “Having determined the period which should be served for the purposes of retribution, judges should remember to deduct the period which has already been spent in custody in order to arrive at the specified part of the sentence for the purposes of section 269(2). Accordingly, there should also be announced the total period and the period deducted as having been spent in custody. The Secretary of State is aware that I am intending to give this guidance and agrees that I should do so. I enclose Lord Bingham’s letter, my Practice Statement and a copy of the relevant statutory provisions. In due course, I will communicate with you further as to the review of minimum terms in relation to existing prisoners already notified by the Secretary of State (paragraphs 2 to 4 of Schedule 22) and the setting of minimum terms in relation to existing prisoners not yet notified by the Secretary of State (paragraphs 5 to 8 of Schedule 22).”

[39]The Appellants have criticised this letter for its suggestion that judges should not use the later Practice Direction of 31 May 2002. However, the material provided to this Court by the Secretary of State confirms that he has not dealt with any cases on which the judiciary would have based their recommendations on that Practice Direction. Therefore, as a matter of fact it cannot be evidence of the practice that had been “followed by the Secretary of State before December 2002” and so it is rightly disregarded.

[40]However, a more sophisticated argument is advanced on behalf of the appellants led by Miss Patricia Lynch QC. She with justification contends that the combined effect of Articles 5 and 7 of the ECHR is to require the criminal law to be sufficiently accessible and certain and to enable an individual to know in advance whether his conduct is criminal and to foresee the consequences of such conduct. She accepts, as to the first requirement of the conduct being criminal, there is no possible problem. As to the second part of the requirement, she submits the position is made less clear by the letter of 16th December 2003 in that it excludes reference to the later Practice Direction. This is subject to two requirements. First, the offence was committed after the May 2002 Practice Direction was in force and secondly, there is a difference in the minimum period that would be determined by a judge first, in using the statutory guidance instead of the practice statements and secondly, in using the earlier instead of the later Practice Direction.

[41]As to this argument, we have already indicated that on a close examination of the relevant Schedule and the practice statements, a judge is entitled to come to the same conclusion irrespective of which Practice Direction is used. It is therefore questionable whether it would be possible to establish any contravention of either Article 5 or 7.1 as a consequence of the Practice Direction that was followed by the sentencing judge. In addition we consider that Schedule 21 and the practice statements, properly applied, should produce the broadly similar results except possibly in regard to the two higher statutory categories. As to these higher categories, any difference is of no significance because it would be corrected by the application of either Practice Direction since they deal with them in the same way. In addition the application of the Practice Directions could in fact be unduly generous to the offender since the Secretary of State contends, and there is evidence to support him, that he did on a number of occasions increase the recommendations in the case of the most grave offences.

[42]However, this is an area where the offender’s rights must be seen to be protected and so, although we doubt whether Miss Lynch’s argument will produce any different result on the facts of a particular case as to what should be the appropriate term, we have decided that to avoid any prejudice to an offender the letter of 16th December should no longer be followed in the case of an offender whose offence was committed after May 2002. In such a case the judge in determining the minimum term should apply the Practice Direction of that date. By doing this any danger will be avoided of a judge coming to a conclusion that is adverse to the offender because of the adoption of a higher starting point (14 years) resulting in a longer minimum term than that which would have been determined if a lower starting point (12 years) had been adopted. This would be needed because otherwise paragraph 10 of Schedule 22, would not have achieved its objective since absent the 2003 Act a lower minimum term would have been likely to be imposed for the offence when it was committed. In this situation section 3 of the Human Rights Act would come into play and it would be necessary to interpret Article 10 in a manner that enabled the May 2002 Practice Direction to be used as being the best evidence of the Secretary of State’s practice in relation to those offences committed during the time it was in force.

[43]A further advantage of the judge using the later guidelines when appropriate is that it will not deprive judges of the more refined guidance the later Practice Direction provides. In addition, the judge’s task can be simplified further, since the Practice Direction itself will produce the result required by paragraph 10 of Schedule 22. This is because when the minimum term is calculated applying the later Practice Direction the period of the minimum term will either be the same or shorter than the minimum term calculated applying Schedule 21.

[44]A different argument is advanced by Mr Ben Nolan QC on behalf of the Appellant Barry Elener whose minimum term is 27 years. In his case it is rightly conceded in the light of the evidence from the Home Secretary that the non-use of the May 2002 Practice Direction can no longer be relied on. It was, however, argued that a generous discount should be given because of the difficulty of saying with reasonable certainty what the practice of the Home Secretary would have been likely to be prior to December 2002. Accordingly, his client should be given the benefit of the doubt. In addition, the cases where, on the evidence, more than 25 years was taken as being the minimum term have been of a different character from his clients case. As to giving the benefit of the doubt, that is what we have done by proposing the use of the May 2002 direction in future. Especially in serious cases there can be no need for any further protection because there is absolutely no evidence to suggest that the Home Secretary’s practice was ever more lenient than that set out in the May 2002 Practice Direction.

[45]Although we have modified the guidance contained in the letter dated 16 December 2003, as to the use of the May 2002 Practice Direction, it would be wrong to assume that because it has already been applied in its unmodified form this means that the wrong minimum term has been determined in those cases in which it was applied.

The Individual Appeals

[46]Because of the conclusions to which we have come as to the effect of the different practice statements our task in determining the appeals is made less complicated. We will deal with the appeals in turn using the May 2002 direction where appropriate. They have all been given leave to appeal. Before this Court, for an appeal against the length of a minimum term to succeed it has to be shown, as is the case with any other appeal against sentence, that the minimum term is manifestly excessive.

Melvin Terrence Sullivan

[47]On 9th March 2004, at the Crown Court at Norwich before Aikens J, the appellant was convicted by a majority of 10:2 of murder and sentenced to lifeimprisonment with a minimum term of 13 years and 88 days, pursuant to section 269 of the Criminal Justice Act 2003. His application for leave to appeal againstconvictionwas dismissed at the commencement of the hearing for reasons that were then announced. The Facts

[48]In the early hours of the morning of 7 June 2003, the appellant became involved in an altercation with his neighbour, Michael Bailey, who had returned home with his fiancée and two friends after a night out. The appellant objected to the noise made as they went into the house and he or his wife banged on the internal wall between the two houses. Bailey went outside, followed by his fiancée Amy Cottrill, and they shouted abuse towards the appellant’s home. The appellant went out with a long thin sword-like weapon. During the course of the ensuing argument the appellant stabbed Bailey once with the weapon so that the weapon entered Bailey’s body at one side and emerged from the other, puncturing his heart and lungs. Bailey died shortly afterwards from the wound, which was 33 cm deep.

[49]The prosecutioncase was that during their argument, Bailey had told the appellant that the best thing would be for him to go inside. He had stepped forward, lifted his right arm and pointed at the road. The appellant had then deliberately thrust the weapon into the left side of Bailey’s chest with at least moderate force. An intention to kill or at least to do Bailey really serious harm could be inferred from the appellant’s actions.

[50]The defendant’scase was that Bailey had been abusive outside and had banged on the window of the appellant’s downstairs bedroom. The appellant had been afraid for his safety and had taken the weapon out as protection, not knowing how many people were outside and being aware that Cottrill was connected to a family of some notoriety. He saw four people outside and saw that Cottrill was armed with a knife. As Bailey stepped towards him with his arm raised, the appellant lifted the weapon and realised he had caught Bailey. He had acted in self-defence and had no intention to kill or cause really serious harm. The issues for the jury were whether the appellant had acted in self-defence, whether he had acted with the necessary intent and whether he had been provoked. The verdict means that the jury rejected these defences.

[51]Cottrill gave evidence that she had returned home with Bailey in the early hours of the morning with two others and that she heard banging lasting about a minute after the door had shut. Bailey said, “What the fuck are they banging about?” and went outside in his socks. He did not have his top on, had nothing in his hands and did not have a weapon. She followed him out. Bailey was shouting, as was she. She said to the appellant, “You may be bullying everyone else down the street but you are not bullying us.” The other two came outside. She did not have a weapon in her hand.

[52]The appellant was at arm’s length from Bailey. She was standing behind Bailey and slightly to his left. She saw what she thought was a metal bar in the appellant’s hand and asked him why he had it. He replied, “I do not know how many of you there is.” She told Bailey to “leave it”, but he stepped forward and said to the applicant, “the best thing for you to do is to fuck off back into your house as we have not done anything wrong.” He pointed with his right arm towards the road as he said it. The appellant stepped backwards then thrust forward towards Bailey. The appellant then went back into his home. In cross-examination she confirmed that Bailey shouted and that there was shouting from next door in response. Bailey had invited the appellant to come out if he had anything to say. She did shout, “get Walter”, but she could not remember why. It was dark but there was a streetlight. The appellant had not waved the bayonet at all. It all happened in a split second when Bailey moved forward and the appellant stepped back. The appellant kept a collection of knives and bayonets. There was evidencethat a large degree of movement was needed to cause the blade to move 33 cm. The wound tracked slightly upwards from left to right. The pathologist considered that it would have been necessary to grip the handle of the weapon firmly and would need some force to pull it out.

[53]Theappellant gave evidence. He lived with his wife. He said he was watching television (with headphones) late on 6 June and his wife was working on her computer. He was disturbed at 2.45 by a loud bang from the street next door. It was not the first time. His wife banged on the wall, but he did not. He then heard a loud bang from what he thought was the bedroom window. He heard shouting and swearing outside and believed it to be directed to his wife who was on the bed, crying. He could see the silhouette of Bailey through the window. He dressed and left the bedroom, being fearful that something might be thrown through the window. He knew that one of the neighbours was related to a family with a reputation as people who did not take kindly to those who upset them and could be violent. He knew that from his son, who had worked for one of the Cottrills.

[54]His wife had become hysterical and inconsolable. He went to the front door and picked up the bayonet or sword from behind the curtain. He kept it there with the coshes for protection. He had been collecting weapons since he was a lad, but the coshes were his wife’s. The machete was something he used in the garden but he kept it under the settee to stop it getting rusty. The weapon he took was the first thing that came to hand. He thought there would just be a verbal argument. There were four people outside when he went out. Bailey was swearing and shouting and squared up to him with a clenched fist. When he was within three feet of Bailey he saw that Amy Cottrill had a knife in her right hand, which she was moving up and down. He stopped at about arm’s length from Bailey, who suddenly stepped forwards and raised his hands. He accepted that he was also shouting and that he swore. Bailey threatened to “do him” and he then remembered Bailey stepping forward and raising his right hand towards his (the appellant’s) chest. He stepped back and raised his right hand with the weapon. He did so because he thought Bailey was armed and because he had seen Amy was armed. He did not have time to think and was scared of being harmed. He stepped back and brought the weapon up and round. Bailey staggered back whereupon he backed away and said “get the police”, or words to that effect. He went back inside and put the weapon back behind the door. He asked his wife to call the police. She was hysterical and thought they would come round and force their way into the house. The defence pathologist confirmed that it was possible that having pushed a bayonet 13 inches into someone and then pulled it out, a man might not be aware of having done so.

The Trial Judge’s Sentencing Remarks

[55]In sentencing the appellant the judge said that he was satisfied on the evidence that the deceased had come out of his house, followed by his fiancée, and had been noisy and abusive. The appellant had confronted him and, as the deceased stepped forward, lifted his right arm and pointed to the road, the appellant had deliberately thrust the bayonet into his left side with moderate force or a little more. The appropriate starting point for sentence was 15 years, bearing in mind the provisions of paragraph 4 of Schedule 21 of the 2003 Act. An aggravating feature of the case was the appellant’s decision to go outside the house armed with a bayonet, a weapon designed to kill or seriously wound. So far as mitigating factors were concerned, the court did not accept that he had only intended to cause serious harm to the deceased; his deliberate thrusting of the weapon indicated an intention to kill. There was, however, no premeditation. He had not been goaded into the killing by the argument with the deceased, nor had he lost his self-control. There was no question of a long-term dispute with the neighbours. He had not acted to any extent in self-defence. The deceased was unarmed and bare-chested and had made no attempt to physically attack him. The court did not accept that Amy Cottrill was armed before the deceased was stabbed.

[56]If there were no other factors to consider, on the above basis the appropriate minimum term would be 15 years. However, as the offence pre-dated the commencement of the Act, Schedule 22 of the Act applied. The minimum term was not therefore permitted to exceed the minimum term which would have been notified by the Secretary of State under the practice which he followed before December 2002. There was no guidance before the court and nothing in the Act to directly indicate what period would have been notified by the Secretary of State before December 2002. There had been no publication of the practice. Such guidance as there was came from the Practice Directions. Under the earlier practice note the appropriate term in a case such as the present would have been 14 years. The later practice statement stipulated the starting point as 12 years. Counsel for the appellant had submitted that the later Practice Direction was the relevant one for determining what the Secretary of State’s practice would have been before December 2002. The court was not satisfied that such was the correct approach though, as the practice appeared to have been to act in accordance with the earlier Practice Direction. The best evidence of the practice of the Secretary of State at the relevant time came from the letter of the Lord Chief Justice dated 16 December 2003, which counsel had seen. Accordingly the minimum term (subject to time spent in custody) had to be fixed at 14 years. Antecedents

[57]The appellant was 45 and had 12 previous convictions from 1975 onwards, mostly spent and mostly for dishonesty offences. He had two convictions for violence: for Assault Occasioning Actual Bodily Harm in 1982, for which he was fined, and his most recent conviction, for Common Assault in 1990, for which he was sentenced to 3 months’ imprisonment, suspended. Grounds of Appeal

[58]The judge erred in his approach to setting the tariff and acted contrary to Article 6 in his reliance on the contents of the letter of 16th December 2003 (from the Lord Chief Justice) and the documents referred to therein, in place of the relevant published and accessible Practice Statement indicating a starting point of 12 years. In addition the minimum period of 13 years and 88 days was manifestly excessive and/or wrong in principle.

Decision

[59]We say this appeal provides support for the reasoning set out already for saying that the outcome should be the same irrespective of which Practice Direction is used by the trial judge. We also consider (contrary to Aikens J) that it would be the same in this case applying Schedule 21 even though the starting points are different. The appropriate minimum term would be about 14 years whichever guidelines were used. Under Schedule 21 the 15 year starting point would stand to be reduced because there are mitigating circumstances that the Schedule identifies. In particular there is the lack of premeditation. This would justify the reduction to 14 years. On the other hand if 12 years were taken as the starting point, an increase to 14 years would be required. This is because of the aggravating feature that would then have to be taken into account because Aikens J found (which on the evidence he was entitled to do) that in this case there was an intention to kill. We appreciate that there was a degree of provocation in this case which is a factor that can justify a reduction in a normal starting point. However, because the intention to kill was found by the judge, provocation could not provide any excuse for the appellant’s offence on the facts of this case. Miss Lynch was right in her argument to concentrate on her submissions based on the Human Rights Act. Those submissions having already been considered and the correct deduction having been made for the appellant’s period in custody, we dismiss this appeal. Martin Godwin Gibbs

The Facts

[60]On 22 December 2003 at the Central Criminal Court before H.H.J. Morris QC the appellant was convicted of murder (Count 1) following a re-trial and was sentenced to lifeimprisonment with a minimum term of 17 years, pursuant to section 269 of the Criminal Justice Act 2003. He had earlier pleaded guilty to an alternative count of Manslaughter (Count 2). The appellant was originally convicted on 15 March 1999. On 7 May 2003 the full court quashed the conviction and ordered a re-trial.

[61]In the early afternoon of 15 July 1998, the appellant and the deceased, Wilbourne Williams, were both passengers on a London bus travelling from Victoria to Lewisham. The appellant was sitting at the back of the bus on the lower deck and Williams was sitting in front of him, on a seat facing the side of the bus. At some point the appellant threw a bottle out of the bus window, whereupon Williams told him off. Other passengers heard the appellant tell Williams to mind his own business and to leave him alone. Williams said again he should not have done it and the appellant threatened to “stab him” or “cut him”. Williams was calm and quiet in tone.

[62]As the bus crossed Vauxhall Bridge Williams stood up and rang the bell for the bus to stop. The appellant stood up to follow him and was shouting aggressively and asking him if he wanted to fight. Both men got off the bus, together with another passenger. She saw that the appellant had a knife in his hand and was pushing Williams. He then stabbed him once in the chest. A witness, watching from the bus, saw the appellant take a long kitchen knife from his pocket and try several times to stab Williams who was throwing punches to protect himself. Other passengers saw Williams punch the appellant, or described the two men fighting. The appellant then ran off and was pursued by a witness. The appellant managed to evade him. The emergency services were called and attempts made to resuscitate Williams but he was pronounced dead at 1.55 p.m. He had died from a single stab wound to the right upper chest, angled downwards to a depth of 9.4 cm. According to the pathologist, no more than moderate force would have been required to inflict the injury.

Sentence

[63]The judge in sentencing said the victim was a gentle, peaceful man who was loved by his family, his friends and the members of his church. He was 56 at the time of his death and was killed for no other reason than he had told the appellant off for throwing a bottle out of a bus window. The appellant was an extremely dangerous and manipulative man, who was prone to violence and aggression and who sought out confrontation so that he could use violence against others.

[64]For many years he had been prone to carry knives and to use them when the opportunity arose. He had a record for wounding his girlfriend with a knife in 1993 when she required 26 stitches as a result. In 1993 and 1996 he had been convicted of possessing a knife in a public place. On at least two occasions after the murder he became involved in further incidents where he threatened to stab people and on at least one of those occasions the court was satisfied that he was carrying a knife.

[65]On the day of the offence he had taken a 12-inch long knife with him when he left home. His version that he stole a knife to cut up fruit was rejected. He had threatened to stab the victim and did not do so on the bus because he realised it would be difficult to make good his escape. Having waited until the victim got off the bus he tried several times to stab him. It was accepted that he may not have intended to kill him. He had a paranoid and antisocial personality disorder which may have lowered his culpability. He was, however, a very clever man and had managed to deceive a number of psychiatrists by lying about his symptoms, so that they thought he was suffering from schizophrenia. He had been fully able to control himself on 15 July 1998 but had chosen not to do so because he enjoyed using violence against others.

[66]The appropriate starting point for his sentence to meet the requirements of retribution and deterrence was one of 15 years, as counsel had agreed. Taking into account his previous record, his habit of carrying knives and the premeditated nature of the offence, balanced against the mitigating features identified, the starting point would be increased to 17 years.

Antecedents

[67]He was 51 and had convictions (some spent) between 1969 and 1998, mostly for dishonesty offences (Theft, Burglary, Handling). He also had a conviction for Unlawful Wounding from 1993 for which he was imprisoned for 9 months. The same year he had been imprisoned for one day for Possession of an Offensive Weapon and in 1996 had been fined for Possession of a Bladed Article.

Grounds of Appeal

[68]The 17-year term was manifestly excessive in that: A) The judge erred in taking into account incidents two months after the offence when the appellant was alleged to have threatened to stab other people. They were wholly separate matters; the appellant denied having a knife on either occasion and he had not been warned about the right not to incriminate himself in respect of those matters which could have formed the basis of other offences. B) The judge failed to take adequate account of the mitigating factor; namely substantial mental disability and a history of mental illness, deprivation as a child (including being hit by his mother with a machete) and the fact that he had only one previous conviction for violence. C) Mr Edward Fitzgerald QC who appeared for Mr Gibbs relied at the hearing on the arguments advanced so effectively by Miss Lynch on behalf of Mr Sullivan based on the Human Rights Act and the 2002 Practice Direction. He submitted that if the latest Practice Direction was used, the starting point would have been 12 years and from this starting point the calculation would have resulted in a figure of less than 17 years.

Decision

[69]If 17 years is the appropriate period then that figure could have been determined as being the minimum term regardless of which starting point was adopted. So we would reject Mr Fitzgerald’s reliance on Miss Lynch’s argument for the reasons already given. As the trial judge indicated, this was a case of an individual attacking a perfectly innocent member of the public without any justification at all. The crime itself was especially serious because Mr Gibbs was a person who was in the habit of carrying a knife and would not hesitate in using it.

[70]It is also, however, a case in which it is very important to distinguish the two aspects of a life sentence. The reference to the later incidents would not be justifiable if the judge was referring to them to illustrate the risk that Mr Gibbs constitutes, as this is a matter for the Parole Board. In addition, Mr Gibbs’ mental condition undoubtedly played a part in this offence. This is capable of being a mitigating factor which would justify reducing the minimum term, although it will be a matter to which the Parole Board will have to pay particular attention in the future in deciding whether the risk is sufficiently reduced to justify releasing Mr Gibbs on licence.

[71]Looking at the picture as a whole it is our view that 17 years does not pay sufficient attention to Mr Gibbs’ mental disability and a more appropriate figure is 14 years. Whether 12 or 14 years is adopted as the starting point, the going armed with a knife and the unprovoked nature of the attack on a perfectly innocent person could justify a figure of 17 years; however, there then would have to be a substantial discount for the offender’s mental state which would reduce the appropriate term to 14 years. We accordingly allow the appeal and substitute a minimum term of 14 years, in relation to which there will need to be credit for any period spent on remand. Regina v Barry Elener and Regina v Derek Elener The Facts

Regina v Barry Elener and Regina v Derek Elener

[72]On 3 February 2004 at the Crown Court at Leeds before Wakerley J. Derek Elener, who is the father of Barry Elener, pleaded guilty on re-arraignment. On 2 March 2004 the son was convicted and on 12 March 2004 they were sentenced as follows: B. Elener Count 25 – Robbery – 15 years imprisonment concurrent to Count 27 Count 26 – Possession firearm when committing Schedule 1 offence – 3 years imprisonment concurrent to Count 29 Count 27 – Robbery – 17 years imprisonment concurrent to Count 28 Count 28 – Murder – Life imprisonment Count 29 – Possession firearm with intent to endanger life – 5 years imprisonment consecutive toCount 27 TOTAL SENTENCE: Life imprisonment with a recommendation he serve 27 years imprisonment. D. Elener Pleaded guilty to: Counts 1, 4, 7, 9, 11, 14, 16, 18, 20, 23, 25 and 27 – 12 counts of Robbery. Sentenced to 15 years imprisonment on each count concurrent and concurrent to Count 28 Counts 2, 5, 12, 2 2 and 29 – Possession firearm with intent to endanger life x 5. Sentenced to 5 years imprisonment on each concurrent but consecutive to Count 1 Counts 3, 31 and 32 – Causing grievous bodily harm with intent x 3. Sentenced to 20 years imprisonment on each concurrent and concurrent to Count 28 Counts 8, 10, 15, 17, 19, 24 and 26 – Possession firearm or imitation firearm when committing Schedule 1 offence x 7. Sentenced to 3 years imprisonment on each concurrent and concurrent to Count 2. Count 28 – Murder. Sentenced to life imprisonment. TOTAL SENTENCE: Life imprisonment with a recommendation he serve 25 years imprisonment.

[73]These offences involved 12 armed attacks on security guards undertaking high value cash collections and deliveries in the Bradford area. On five occasions, a firearm was used, on the last occasion with fatal consequences. The total amount of money stolen was £192,626. The father, who is 65, was involved in all the offences and his son, who is 42, on the last two occasions.

[74]Between December 1985 and April 1995, the father was employed by Securicor and, following his departure, Securicor received an intelligence report that he had been spotted watching one of their vehicles making a delivery and the police were informed.

[75]The first 26 counts are connected to a series of similar robberies that took place between November 1994 and November 2002. In each case a man holding a handgun frightened a security man into handing over or dropping a money container which the robber ran off with to a waiting car that drove off making an escape. On one occasion the gun was fired into the security guard’s abdomen although the robber had already taken possession of the cash. On another occasion the gun was fired into the back of the security guard who was trying to obtain safety in his security van. On a third occasion the gun was fired but missed.

[76]At about 5.10pm on 27 January 2003, a security guard was collecting cash from travel agents. As he made his way back to the van with a box containing £40,000 in cash, he was confronted by an armed man who demanded the box and threatened to shoot him. The guard released the box and the man made off in a Nissan motorcar with his accomplice.

[77]As the robbers drove off in the Nissan, the occupants of a BMW motorcar followed them, since they had witnessed the robbery. The Nissan came to a halt and the BMW pulled up alongside it. A passenger in the BMW alighted from the car and was challenged by one of the men in the Nissan. The passenger in the Nissan then shot the man in the chest. The shot was fatal. The Nissan was driven off (Counts 27, 28 and 29).

[78]On 7 February 2003, the applicants were arrested. When interviewed, they both denied any involvement in the final robbery or murder.

Sentence

[79]The judge in sentencing said that the father had instigated and inspired this campaign of 12 serious robberies of cash in transit over an 8 year period. He had used his knowledge of the system gained through his employment in the planning and execution of the robberies. His role was generally as the driver of the getaway car. He would be dealt with on the basis that he was not the gunman but that he continued the campaign in the knowledge that his accomplice had a gun, which had been used, and in the realisation that this accomplice would shoot to kill, which is what his son had done.

[80]The robberies and associated offences were aggravated by the use of a firearm, which was discharged on five occasions to dreadful effect. The fact he had no relevant convictions was of minimal relevance. He was 65 but had played for high stakes over several years and had eventually lost. In view of the consequences of his conviction for murder, the sentence could not be significantly discounted because of his age. The starting point for the robberies and associated offences was one of 25 years. He was entitled to some credit for his plea.

[81]The sentences for the firearms offences would run consecutively to the sentences for the robberies. The sentence for murder was fixed by law but the period he would have to serve had to be specified. This was a grave offence, committed during the course of the robbery. The specified period would be 25 years, less the period he had spent on remand.

[82]As to the son, he had shot and killed a man who had bravely sought to intervene. He had not shown one jot of remorse. The sentences for the firearms offences would run consecutively to the sentence for the robberies. As far as the murder was concerned, he had deliberately shot at the man, intending to kill him. The specified period in his case would be 27 years, less the period he had spent on remand.

Antecedents

[83]The son was born on 10 July 1961 and was of previous good character. The father who was born on 15 November 1938 had no previous convictions of any relevance.

Grounds of Appeal

[84]The son’s grounds of appeal were that the recommendation that he serve 27 years was manifestly excessive in all the circumstances of the case. Insufficient account was taken of the principle of parity with his father, who had been committing extremely violent offences over a 10 year period, whereas the appellant was involved over 2 months. He had a good character and insufficient account had been taken of the fact that the appellant’s decision to discharge the firearm although not spontaneous, was a course of action decided on in a moment during the escape from the robbery.

[85]The father’s grounds of appeal were that the minimum term he must serve was manifestly excessive in all the circumstances of the case. Insufficient account was taken of his age; his guilty pleas, which were courageous and good character; his contrition; the fact he had not pulled the trigger; and the principle of parity with his son, who did not plead guilty and was directly responsible for the death of the victim. Decision Derek Elener

Decision

[86]We regard these crimes as very serious indeed and as certainly justifying starting points of thirty years. This would be the figure under Schedule 21 and under both practice statements. They display a total disregard for human life and it is fortunate that there is only one person who has been killed. The father was more than a “get-away” driver. He continued to act as a driver even after he must have known that guns had been used and knowing the nature of the offences he recruited his son. His age means he could never leave prison. However, for professional crime of this nature, whatever your age, you must still be severely punished. The reduction to 25 years is justified by the plea and his age. These mitigating factors are of reduced significance because the plea was not made at the outset and his age had not deterred him from playing his active role in the crimes. Barry Elener

[87]The son was involved after a pattern had been established of how the crimes were to be committed and the son acted in accordance with that pattern. Thirty years is the appropriate starting point and the judge recognised what mitigation there was fully in reaching the minimum terms he considered appropriate.

[88]Due credit must be allowed for the period spent on remand. Both appeals are dismissed.

Cited in 17 later judgments

and 8 more of the most senior