X, R v [2005] EWHC 305 (Admin)

Case No 2004/251/MTR

[2005] EWHC 305 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 17 th February 2005

Strand

London WC2

Before

MR JUSTICE STANLEY BURNTON

Between

REGINACrown

A DECISION UPON AN APPLICATION UNDER PARAGRAPH 3 OF SCHEDULE

22 TO THE CRIMINAL JUSTICE ACT 2003

-v-

Between

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

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(Official Shorthand Writers to the Court)

Judgment

Introduction

[1]On 7 May 1998, following his trial at Worcester Crown Court, the Applicant, XY, was convicted of the murder of ZW and sentenced to life imprisonment. At the time of the offence, the applicant was aged 44 years. The trial judge, His Honour Judge Mott, reported to the Home Secretary that, in his view, the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offence of which the Applicant had been convicted was 18 years. The Lord Chief Justice, Lord Bingham, thought that a term of 17 to 18 years was appropriate. Following extensive written representations made on behalf of the Applicant, the Home Secretary set his tariff at 17 years.

[2]Pursuant to section 276 of the Criminal Justice Act 2003 and Schedule 22 to the Act, XY has applied for the determination of the minimum term following which the early release provisions referred to in Schedule 22 apply to him. This is my determination of that minimum term.

[3]For the purposes of my decision, I had carefully considered the representations and material submitted to the court on his behalf, and the guidance given in the Practice Direction (Crime: Mandatory Life Sentences,) (No. 2)

[2002] 1 WLR 2551

[4]I have replaced the names of the persons involved in this case and certain other names in order to preserve anonymity.

The offence

[5]The Applicant had previously been married to AXY by whom he had two children. At the time of the killing the older was 22 years of age and the younger 2l years of age. The Applicant and his wife separated in about 1988. AXY remained at the former matrimonial home.

[6]The deceased, ZW (aged 30 at the date of his death), was a boyfriend of AXY. He had, to all intents and purposes, been living at the former matrimonial home.

[7]The Applicant remained in regular contact with his children and frequently telephoned to speak to them.

[8]Approximately a week prior to the shooting BXY and her boyfriend held a party to celebrate their engagement. AXY and the Applicant attended. The Applicant had been associating with one CD who had been AXY’s best friend.

[9]On 21 June 1995 the deceased and AXY argued at home. CXY became involved in the argument and the deceased said to him words to the effect, “Your dad started all this, tell him I want to see him and I will sort it out with him.”

[10]On the afternoon of 22 June 1995 the Applicant spoke to his wife by telephone on a number of occasions. In her initial statements AXY stated that he said words to the effect of, “I’m gonna come round and cause fucking mayhem. I am going to kill you and your boyfriend.” It appears that subsequently AXY spoke to CD and said words to the effect of, “Tell Thomas not to come round here or I will stab him.”

[11]At about 18.15 a witness saw a man answering the description of the deceased go out to a black hatch back ear parked on the drive of the former matrimonial home and remove a pick axe handle which was taken into the house.

[12]At about 18.30 the Applicant met with his son and two of the latter’s friends at a local public house. The Applicant carried a baseball bat. Present in the house were AXY and the deceased. The Applicant went in to the main bedroom and began to attack the deceased with the baseball bat whilst the others restrained AXY.

[13]A struggle took place between the Applicant and the deceased and the latter appears to have removed the baseball bat from the Applicant during a struggle which moved from the bedroom on to the landing. According to the prosecution case, the Applicant produced a sawn-off shotgun and said to the deceased words to the effect of “Do you want a bit of this?” A struggle ensued during the course of which the deceased grabbed hold of CXY and held him in front of him. AXY became involved in the struggle during the course of which the deceased retreated in to the main bedroom and closed the door. The Applicant was unable to gain entry in to the bedroom but he discharged the gun and it was apparent that he had hit the deceased. The Applicant and his colleagues then left the scene.

[14]The deceased was conveyed to hospital but pronounced dead at 19:36.

[15]At about 21:00 on the same day the Applicant was arrested without difficulty by police in the car park of a local public house.

[16]The Applicant was subsequently interviewed on two occasions at the police station. On the first occasion the Applicant made no reply to questions on the basis of legal advice he was given. On the second occasion he provided an account of events leading up to and including the shooting of ZW which in essence was: -(a) On or about 16 June 1995 the Applicant had a confrontation with the deceased as the latter had threatened his son. During the course of that confrontation the deceased had produced a revolver.

(b) On 22 June 1995 the Applicant decided to give the deceased “a bashing”. The Applicant, knowing that the deceased had a revolver, took a shotgun for his own protection. The presence of that shotgun was not known to the other parties.

(c) On arriving at the house, the Applicant went up stairs and “shouldered” the bedroom door open and began to hit the deceased with the baseball bat. The deceased retaliated with a pickaxe handle and a fight ensued. The Applicant was pushed back on to the landing and the baseball bat came out of his hands.

(d) At this stage the deceased grabbed hold of CXY round the throat and said, “I’ll sort you out now.” The Applicant said he took out his shotgun at this stage and said, “Let him go.” As he said this the deceased backed towards the bedroom and AXY intervened.

(e) The Applicant lifted up the gun at the time when the deceased closed the bedroom door and thereafter it was discharged accidentally.

[17]The Defence maintained the history set out in the interview with the police and in particular that the shotgun was discharged by accident. The Applicant’s Counsel was to maintain at the trial that the Applicant lacked the requisite mens rea and emphasised in particular the following issues: -(a) The shotgun was one that the Applicant had previously obtained for genuine reasons of self protection; and

(b) The presence of the Applicant’s son at the scene; and

(d) The Applicant had stopped the attack on the deceased and had gone part of the way down the stairs, before the gun had been produced.

[18]Arising out of the assistance given by the Applicant the Crown admitted that:

“the Defendant prior to taking the gun with him to go to [the former matrimonial home], kept the gun for genuine reasons of self protection and not for any reason connected with the commission by him or another of any crime requiring the use of the gun.”

[19]The Applicant did not give evidence. He was convicted.

The Home Secretary’s decision

[20]Subsequent to the conviction and sentence the trial Judge submitted a report to the Home Secretary setting out the background and circumstances to the killing. In this report the trial Judge stated:

“The Defendant and his wife had long been separated. She lived with their two children (ages 19/20) and her boyfriend, ZW The Defendant was still possessive of his wife, and upset to think that any other man would supplant him in his children’s lives. By the date of the offence he had been out of prison (in France) for about two months. It is not possible to know the whole truth about the events leading to the offence, in particular whether his children disliked ZW and were bullied by him as the Defendant claimed. In whatever circumstances, his resentment towards ZW led him to organise what was intended initially to be a serious attack on him with a baseball bat at the family home. He intended to (and did) catch ZW in bed and he knew his wife could be in bed with him (which she was not). He obviously intended serious injury. He got his son, and two of the friends, to accompany him in order to hold AXY back. Such was his influence over the son that they all agreed. In addition to the bat, the Defendant armed himself with a loaded double barrel sawn off shotgun hidden under his coat, of which the boys may well have been unaware. They all went into the house in the early evening. The son and friends succeeded in restraining a distraught AXY. The Defendant attacked ZW in bed, but the tables were turned and ZW (a strong man) chased the Defendant onto the landing. The Defendant went partly down the stairs. ZW challenged him to a fistfight. The Defendant’s response was to bring out the gun and ask if ZW wanted “some of this”

. ZW took hold of his son as a shield. AXY grabbed the gun barrel. ZW let go of the son and retreated behind the bedroom door. AXY was pulled away. The Defendant fired one shot, at what amounted to point blank range, at the door behind which ZW was standing. He was hit in the chest and died just after the ambulance arrived. The Defendant and the young men fled. The Defendant disposed of the gun somewhere. He was arrested that evening without fuss. He admitted going with the others to beat ZWup, but falsely claimed that he only took out the gun after ZW took hold of his son, and that it subsequently went off accidentally.” The trial Judge continued: - “The Defendant has been delinquent since his teens. His violent convictions were domestic. I enclose a summary of his paid activities as a police informer. There is no evidence he had ever previously used the gun.”

[21]The Secretary of State of the day invited the Trial Judge’s views on the appropriate period to fix as the Applicant’s tariff. The Trial Judge stated: “18 years. It is my view that the period in custody for deliberately taking a life should not he reduced because of the help given to the police in the past, for which he was in any event paid, and as a result of which he has already had a much reduced sentence from a French Court. It is unquestionably the case that there is some degree of risk to him, whether in prison or outside, resulting from those activities; but again I do not consider that the tariff figure should be reduced because of that. It should however reflect the circumstances in which the offence was committed, in his wife’s and son’s presence in their home and his involvement of the son in the original plans coupled with the use of an illegal firearm”.

[22]The Lord Chief Justice’s views were also sought and he stated:

“I agree with the Judge’s approach to this case. I do not think his past activities call for a discount in his favour. I think a term of 17/18 years appropriate.”

[23]Following receipt of the judicial recommendations the Applicant’s then solicitors submitted a quantity of documentation in support of their contention that the tariff should be less than that recommended. I have considered that documentation.

[24]In setting the tariff at the period of 17 years imprisonment the Home Secretary stated:

“The Secretary of State notes that you were convicted in 1998 of the murder of the man with whom your estranged wife was living and sentenced to life imprisonment. You were possessive of your wife and you disliked the idea of this man supplanting you in the lives of your grown up children. While your son and two friends restrained your wife, you attacked the man with a baseball bat as he was in bed. He chased you from the room and when he challenged you to a fight you produced a loaded sawn off shotgun, he grabbed your son but released him and retreated behind a bedroom door. You fired one shot at effectively point blank range at the door. The victim was hit in the chest and died shortly afterwards. The Secretary of State has taken into consideration that you did not go to the house intending to kill the victim, He has considered the representations made on your behalf that the assistance you have given to the police as an informer both before and since your conviction for murder merits a reduction in your tariff. He has not, however, been persuaded by them, preferring the views of the Trial Judge and the Lord Chief Justice in this connection. The Secretary of State has attached weight to the fact that you went to where the victim was living, armed with a baseball bat and loaded gun, (albeit that you owned itfor your own protection), intending to cause serious injury and use the latter in anger and following loss of face when the victim got the better of you.”

The statutory provisions and previous judicial authority

[25]This application is made under paragraph 3 of schedule 22 of the Criminal Justice Act 2003. The schedule is entitled “Mandatory Life Sentences: Transitional Cases.” Paragraph 3 of schedule 22 applies to “existing prisoners” who have before the commencement date of the Act, (18th December 2003) been notified in writing by the Secretary of State either of a minimum period which in the view of the Secretary of State should be served before the prisoner is released on licence, or have been notified that the Secretary of State does not intend that the prisoner should ever be released on licence (described in schedule 21 as a “whole life order”). “Existing prisoners” are defined as persons “serving one or more mandatory life sentences passed before the commencement date ...”

[26]By virtue of paragraph 3, an existing prisoner who has been notified by the Secretary of State of a minimum term, and whose term has not expired, may apply to the High Court for a reduction in the minimum term. By virtue of paragraph 3(1)(a), the High Court may not set a minimum period which is greater than the notified minimum term. Likewise a person who has been notified that the Secretary of State does not intend that he should ever be released on licence, may apply to the High Court for an order setting a minimum term.

[27]By virtue of paragraphs 3 the “early release provisions” apply to an existing prisoner notified of the tariff period prior to the commencement of the Act after he has completed the notified minimum term, or after he has completed a minimum term set by the court under paragraph 3. ‘The “early release provisions” mean the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997. Subsections (5) and (6) provide:

“(5) As soon as, in the case of a life prisoner to whom this section applies - (a) he has served the [relevant] part of his sentence... [that is the minimum term]; and (b) the Parole Board has directed his release under this section, It shall be the duty of the Secretary of State to release him on licence. “(6) The Parole Board shall not give a direction under subsection (5)above with respect to a life prisoner to whom this section applies unless - (a) the Secretary of State has referred the prisoner’s case to the Board; and (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

[28]Paragraph 11 of schedule 22 provides that the application is to be decided without an oral hearing. In Hammond

[2004] EWHC Admin 2753

, the Divisional Court concluded that it did not exclude an oral hearing where the High Court Judge thought it appropriate. I do not think it appropriate; and in any event by letter dated 21 October 2004 the Applicant’s solicitors stated that he waived his right to such a hearing.

[29]Paragraph 12 requires the High Court to give its reasons in ordinary language and in particular to state its reasons for departing from the notified term. Paragraph 4 provides:

“(1) In dealing with an application under paragraph 3, the High Court must have regard to - (a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, (b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967... as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and (c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such a notification has been given. “(2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to - (a) the general principles set out in Schedule 21, and (b) any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence.”

[30]The determining factor of “seriousness” reflects section 269(3)(a) of the Act, and, it is to be assumed, reflects what used to be called “punishment/retribution and deterrence” (see R (Anderson) v SSHD

[2002] UKHL 46

, paragraph 7).

[31]In my judgment, “the general principles set out in Schedule 21” to which the Court must have regard when considering the seriousness of the offence do not include the starting points specified in that Schedule for determining the minimum term.

[32]I need not concern myself with paragraph 4(l)(b), the reduction for the period on remand.

[33]I turn to paragraphs 4 to 6 of Schedule 21, the relevant provisions for this application:

“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 (h) 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 (l)(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 of 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 orsadistic 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.”

[34]Paragraphs 8 to 11 read: 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. 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 ...), 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.

[35]In the case of Riaz

[2004] EWHC 74 (QB)

Hooper J, as he then was, expressed the view, with which I agree, that the statutory provisions prevent the court from merely adopting the minimum term previously recommended by the judiciary. Paragraph 4(1) requires the High Court in dealing with an application under paragraph 3 to have regard, amongst other things, to the notified minimum term, or to the fact that a whole life order has been notified. This paragraph was enacted notwithstanding that judges in the past have tended, in the case of the gravest murders, to recommend shorter periods than those set by the Secretary of State (see the letter from Lord Woolf to the judiciary dated 16th February 2003), and that this, one assumes, must be known by the legislature.

[36]In Anderson, in which the trial judge and the Lord Chief Justice had recommended 15 years, and the Secretary of State had set a period of 20 years, Lord Bingham said: “In recent years the Home Secretary has set a period in line with the judicial recommendations in a large majority of cases, but in a small minority of cases the period set has been either longer or shorter than the judges have recommended.” (Paragraph 8)

[37]Similarly, the “general principles in Schedule 1” contain starting points which are significantly higher than those which are be to found in the guidance issued to judges by Lord Bingham CJ, by letter dated 10th February 1997, and by Lord Woolf CJ on 27th July 2000 and on 31st May 2002 (see the (Practice Direction (Crime: Life Sentences)

[2002] 1 WLR 1789

). Paragraph 9 of the 2002 Practice Statement sets out the previous starting point and the new starting points:

“This Statement replaces the previous single normal tariff of 14 years by substituting; a higher and a normal starting point of respectively 16 (comparable to 32 years) and 12 years (comparable to 24 years). These starting points have then to be increased or reduced because of aggravating or mitigating factors such as those referred to in paragraphs 10-18 below. It is emphasised that they are no more than starting points.”

[38]In his letter Lord Bingham CJ wrote:

“Mycurrent 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 think the recommended level has risen over the last decade.”

Submissions

[39]No representations have been submitted to me by the Secretary of State for the Home Department, and I understand that to be the practice. There may be cases where the family of the deceased seek to make representations, but they have not done so in the present case.

[40]The submissions made on behalf of the Applicant include statements of the Applicant’s children BXY and CXY which were prepared for, but never utilised at the trial. These statements deal with the background to the killing of ZW and in particular the relationship between the deceased and the Applicant and his children. It was submitted that there was no basis upon which the Trial Judge could have found that: -(a) The Applicant was possessive of his former wife; and

(b) Disliked the idea of the deceased supplanting him in the lives of his grown up children.

(c) There were no grounds for the trial Judge’s negative assessment of the Applicant’s character, particularly as he had not had the opportunity of observing him give evidence. A different assessment of the Applicant’s character is found in the report at Appendix 4 from his personal officer at his present place of detention,

[41]It was however accepted that these matters did not amount to substantial mitigation. In my judgment, that is right, and they do not lead me to reduce the minimum period below what it would otherwise be.

[42]The other matters relied upon by the Applicant are the substantial assistance he has given in the past, and the fact that he only had the shotgun that was used by him because of his fears for his own safety resulting from that assistance.

[43]It is suggested that the starting point for the Home Secretary’s tariff must have been as low as 20 years’ imprisonment, as he arrived at the figure of 17 years’ imprisonment having only accepted as mitigation the fact that the Applicant did not go to the house intending to kill the victim. It is submitted that considerable weight must be attached to the starting point as the tariff was fixed less than four years ago and cannot be said to represent an historic anomaly.

[44]The essential issue in this case is whether the Court should have regard to the very considerable assistance which the Applicant has given to the Police prior to his conviction. It is clear following the decision in R (Anderson) v SSHD that the tariff fixing exercise is a sentencing exercise, whereas at the time when the Secretary of State considered this matter this principle had not been expounded with such clarity. A sentencing exercise focuses, inter alia, on the degree of culpability of the offender and the mitigation which is advanced when determining the punishment necessary to satisfy the requirements of retribution and deterrence, In deciding the appropriate term this Court is bound to take into account all relevant considerations, It is submitted that such considerations include assistance which the Applicant gave to the Police prior to his conviction.

[45]The murder in this case was unconnected with the assistance previously given by the Applicant to law enforcement authorities, beyond the fact that that assistance was the reason he kept a shotgun. I agree with the view of the trial Judge, and indeed Lord Bingham LCJ, that such assistance does not justify a reduction in the minimum term. In my judgment, it would be wrong if persons in the position of the Applicant were entitled to consider that they would receive a lesser sentence for murder, i.e. be treated more leniently, by reason of such assistance. The Applicant’s assistance will be relevant when the Parole Board considers his release on licence.

[46]The starting point at the date of sentence would have been 14 years. Applying the principles contained in Schedule 21, as required by paragraph 4(2) of Schedule 22, the seriousness of the offence was aggravated by the use of a firearm. The fact that the Applicant involved his children in an episode of violence is another aggravating factor, although of less significance. The Applicant did not have the benefit of a plea of guilty. A tariff exceeding 14 years was inevitable.

[47]In these circumstances, I see no reason to depart from the period of 17 years set by the Home Secretary. In my judgment, it is the appropriate minimum period for the offence committed by the Applicant, determined as required by Schedule 22. It is considerably less than the minimum term that would be determined under Schedule 21 for a similar offence committed today.

[48]From that period of 17 years is to be deducted the period of remand in custody, namely 12 months and 4 days. Accordingly, the period to be specified in the order of the Court after which the early release provisions are to apply to the Applicant is 16 years less 4 days.