Herbert, Re review of tariff [2016] EWHC 2008 (Admin)

Case No YOR/05/2016[2016] EWHC 2008 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/08/2016
The Decision of
MR JUSTICE LANGSTAFF
On review of the tariff in the case of RYAN STEPHEN HERBERT
JUDGMENT
The Hon. Mr Justice Langstaff
Introduction
[1]In R (Smith) the Secretary of State for the Home Department [2005] UKHL 51, the House of Lords held that the tariff for a person sentenced to be detained during Her Majesty’s Pleasure is reviewable and may be reduced on a number of specific grounds, in particular where there is clear evidence that the prisoner has made exceptional and unforeseen progress during the course of his sentence. This is a consequence of the relative youth of offenders subject to such a sentence. As Lord Philips of Worth Maltravers CJ said at paragraph 70:- “The requirements of the welfare of the offender must be taken into account when deciding for how long a young person sentenced to detention during Her Majesty’s Pleasure should remain in custody. Those requirements will change, depending upon the development of that young person while in custody. Accordingly, even if a provisional tariff is set to reflect the elements of punishment and deterrence, the position of the offender must be kept under review before the provisional tariff period has expired.”[2]The Applicant, Ryan Herbert, has sought a review of his tariff. It is my task to conduct it. The Lord Chancellor and Secretary of State for Justice have agreed to honour any recommendation made.

The Offence

[3]On 11th August 2007 the Applicant, with others pleaded guilty, immediately before a trial began, to an indictment containing two counts. Count 1 charged the murder of Sophie Lancaster, and Count 2 the offence of causing grievous bodily harm with intent to Robert Maltby contrary to Section 18 of the Offences against the Person Act.[4]At the date of these offences, the Applicant was 15. Having been born on 3rd December 1991, he turned 16 just over three months later.[5]The victims – Sophie Lancaster, who was 20, and Robert Maltby, who was 21 – had been together as a couple for about two years, and had been living at an address for some six months in Bacup. On the night they were attacked they had been at a friend’s house in Bacup. They left at about 11.40 to walk home. The route took them past a petrol station, on the forecourt of which a number of local teenagers had gathered, amongst them the Applicant. They fell into conversation which was friendly and good natured. The group moved on to another location, outside the entrance to industrial premises known as the Fudge Factory, and then went into Stubby Lee Park. There, suddenly and without warning or provocation, five of the youths who had been at the petrol station attacked Robert Maltby, punching and kicking him. He fell to the ground and was kicked viciously to the head and body. At least one of his assailants stamped on his head. He was defenceless and could make no attempt to defend himself as he was beaten unconscious. However, with remarkable courage, Ms Lancaster rushed to give whatever assistance she could and as he lay prone she cradled his head in her lap calling for help and shouting at the attackers to leave him alone. The Applicant and one other turned their attention to her too. She was then subjected to a sustained and vicious attack which involved kicking and stamping on her until she too in her turn was beaten unconscious. They stamped on her head.[6]The conclusion the Court of Appeal subsequently was to draw was that the attack had occurred not by reason of anything Maltby had said or done, but simply because he and his girlfriend (“Goths”) looked and dressed differently from them.[7]So severe was the attack and the injuries of the victims that it was not immediately possible for ambulance personnel to tell which sex either was.[8]One of the disturbing features of the attack is that the group of assailants immediately afterwards behaved as if they were proud of what they had done, almost boasting of it.[9]Both the victims were taken to hospital. Sophie Lancaster survived for some 12 days, but died on 24th August never having regained consciousness. There were 17 separate areas of injury to her head and body. The principal target was her head. Robert Maltby survived. However, he had suffered extensive facial injury, and the attack had caused a subarachnoid collection of blood on his brain. In his case too, the principal target was his head.[10]Robert Maltby suffered long-term consequences of the attack: poor short term memory, and a lack of coordination when tired, with poor balance. He suffered a serious psychiatric disorder, and a victim impact statement revealed that he had virtually become a recluse, not prepared to leave home unless it was absolutely necessary.[11]Any sentence for the murder would be bound to take into account the circumstances of any offence associated with it (see eg s.269(3) Criminal Justice Act 2003). In view of the age of the Applicant, he was and remains liable by virtue of his conviction to be detained at Her Majesty’s Pleasure. It was for the trial judge when sentencing to specify the minimum period of imprisonment before the Applicant could even be considered for release on parole, even if the Parole Board did not choose to recommend his release at that time. The starting point for setting this minimum term was one of 12 years (Schedule 21, Criminal Justice Act 2003). The trial judge took account of aggravating features, which pushed the appropriate term upward. First of these was the fact that the only reason for the attack was that the couple looked and dressed differently, which put the offence on a par with other hate crimes such as those inspired by race, religion or sexual orientation. Second, the extent of the violence was extreme: it revealed a degree of intention to hurt and cause serious injury verging on cruel and sadistic behaviour which most stabbings and shootings whether resulting in death or serious injury do not involve. Third, the attack which resulted in murder was committed when both Sophie Lancaster and Robert Maltby were completely defenceless and she was trying to assist him, with his head in her lap. Fourth, the attack involved more than one victim and was committed by a gang of five. Fifth, in the Applicant’s case he had been previously convicted of an offence of violence committed in the same area and involving kicking, though with nothing like the consequences of this crime. The Judge nonetheless commented “this is an aggravating feature and shows how violent and out of control you were despite your youth.”[12]Taking these matters into account, the judge came to a term of 18 years. He then reduced this, to accommodate the plea of the Applicant, to one of 16 years and 3 months less time served on remand.[13]The Applicant appealed his sentence. On 29th October 2008 his appeal came before the Lord Chief Justice, Owen and Christopher Clarke JJ. Since the Applicant was young, and had admitted some considerable time prior to his rearraignment that he had kicked Sophie Lancaster, thereby admitting he was guilty at least of manslaughter and that he was personally and directly involved in the attack upon her, the Court held that the Judge had given insufficient credit for his plea of guilty. The minimum term to be served was reduced to 15 years 6 months, from which was to be subtracted the days served on remand. The Court however indicated that there was nothing at all excessive in the starting point of 18 years which the judge had adopted before allowing for the effect of the pleas of guilty.

The Criteria for Review

[14]There are three possible grounds on which a minimum term such as this may be reduced. The first is that the prisoner has made exceptional and unforeseen progress during sentence; the second that his welfare might be seriously prejudiced by continued imprisonment and that the public interest in the offender’s welfare outweighs the public interest in a further period of imprisonment lasting until expiry of the current tariff; and the third that there is a new matter which calls into question the basis of the original decision to set the tariff at a particular level.[15]Bhatt Murphy, solicitors acting on his behalf, have relied principally upon the first criterion though it is also submitted that “…there is a genuine concern that a longer period of time in prison will simply serve to entrench him in criminal culture as an adult and will ultimately inhibit his ability to perform pro-social connections and networks in the future.” (These submissions did not identify the source of this concern, nor any offender-specific reason for it).[16]The “criteria for reduction of tariff in respect of HMP detainees” produced by the National Offender Management Service on behalf of the Secretary of State explain that it may be indicative of exceptional progress if the prisoner demonstrates:- “(1). An exemplary work and disciplinary record in prison (2). Genuine remorse and accepted an appropriate level of responsibility for the part played in the offence. (3). The ability to build and maintain successful relationships with fellow prisoners and prisons staff; and (4). Successful engagement in work (including offending behaviour/offence-related courses) with a result in substantial reduction in areas of risk” 21. But add that:
“to reach the threshold of exceptional progress there would also need to be some extra element to show that the detainee had assumed responsibility and shown himself to be trustworthy when given such responsibility. Such characteristics may well be demonstrated by the detainee having done good works for the benefit of others”
. There should be evidence of those factors having been sustained over a lengthy period and in more than one prison.

Evidence relevant to this review

[17]Prior to the offence for which he was sentenced to detention at Her Majesty’s Pleasure, the Applicant had been warned in respect of an offence of battery (20th October 2005), and had received a referral order for an assault occasioning an actual bodily harm committed on 13th April 2007. He had participated in an unprovoked assault against a person who was on his own, during which he was kicked and punched to the floor. The Applicant was acting together with another. After that, but before the murder, he was also convicted of the public order offence of using threatening behaviour likely to cause alarm and distress (29th May 2007). These convictions caused a probation officer subsequently to write that they indicated a developing pattern of offences committed with pro-criminal peers and also under the influence of alcohol.[18]The Applicant’s early time in prison was not promising. Whilst still in a Young Offender Institution he was subject to a number of adjudications. Those of greatest concern involved fighting, using threatening, abusive and insulting words and behaviour, committing an assault, disobeying a lawful order and refusal to work (these spanned 4 separate institutions from 2007 to 2010). In a review of progress at Stoke Heath it was noted that by then he had apparently accrued 34 adjudications (this by April 2012). However, there is some suggestion in the papers that there has been evidence of double counting in this, and that the true figure for the number of adjudications is in the region of 10 to 15. However, though it seems that the number has been over-stated the nature of at least one of them is of particular concern, given the nature of the attack for which he was convicted. This was an incident of 28th October 2009, in which a fight began between two trainees which was quickly joined by others including the Applicant. He was seen not only to throw punches at one trainee, but to kick him several times. Kicks and punches were aimed at the victim’s head, and an officer had to intervene to protect the life of the trainee who was on the floor whilst being kicked. When another officer pulled the Applicant back, that officer in turn was assaulted by the Applicant in the face and chest. He kicked and punched the officer.[19]By 2012, however, he was showing signs that he was not just “going along with” the sentence plan, but contemplating how he might use his time more constructively. By April 2012, his personal officer was able to describe him as a “positive young man”, who had become a full-time wing cleaner, and was a hard worker, with good relationships. He had not had a further adjudication since moving to Stoke Heath.[20]More recently (31st October 2015) Nina Benion, his offender supervisor, recorded that that there had been a gradual move away from the immature and anti-social behaviour he had shown prior to October 2012 when he was transferred to Aylesbury. She thought that in her view (as at the end of October 2015) the Applicant was “at the right place, at the right time in his sentence.” This is indicative of behaviour which, though no worse than expected, is no better. Indeed, the progress is described as being “equal to that expected” of all life sentence prisoners. However, I note that he had not displayed violent behaviour by the date of that report for over 6½ years. That is a marked change for the better.[21]His probation officer, Ray Torzuk, reporting on 8th December 2015 records that the Applicant had completed a number of programmes, though it was apparent from Thinking Skills and Sycamore courses (completed in 2011and 2013) that “…he was in effect in the developmental stages of his sentence with much work yet to be done”.[22]The result of the recently completed Resolve Programme (2015) was more encouraging, though the observation was made that he “needs continued development” even though his overall progress was positive. Mr Torzuk thought that “in essence he is yet to find the emotional balance between being conscious of his past behaviour with, for want of a better term, being deserving of redemption. This is unsurprising given he is still a young man, but there remains an area those working with him need to be alert to and to help him with to continue his progress.” His view is summed up, perhaps, by what he says at paragraphs 3 and 5 of his Tariff Assessment Report: that he did not consider that imprisonment to tariff expiry would be detrimental to the Applicant’s development, and that the Applicant was “…making steady, positive but not exceptional progress in custody”.[23]His personal officer, Ed Burbidge, observes that he was “growing in maturity”, though his report lacks much of the detail contained in those of Torzuk and Benion..[24]I have a considerable number of documents, evidencing the completion of a number of courses in prison. These are to the Applicant’s credit, and I have taken them into account.

Representations on the Applicant’s Behalf

[25]Bhatt Murphy submit on his behalf that he was very young at the time of his offence, such that the issue of his maturity and development in custody are highly relevant. I agree: but the issue for me is whether the development thus far meets the criteria which I have to apply.[26]Bhatt Murphy note that though he had a difficult start to his time in custody, he had notably not had any adjudication since September 2011. They assert that he has made “unexpected and substantial progress both in terms of his behaviour and his focus on improving his qualifications with a view to being able to reintegrate into the community on his eventual release”. Reliance is placed upon a report in November 2008 in which it was noted that he had declined to run away from a prison escort with a group of trainees, and determined on another occasion not to damage his cell together with other trainees. As I understand it, these derive from comments the Applicant made about himself: I have seen no independent verification that those were his thought processes.[27]He had completed courses. He has “given serious consideration to gaining qualifications and skills”, had completed GCSE Maths with a B grade and Business Studies (C grade) and had commenced the first year of an Open University degree in combined social sciences. He works as a gym orderly, and in the Gartree Buddy Scheme providing support for fellow inmates. Bhatt Murphy tell me that he has “completed charitable works inside of prison. He helped to organise the family day which raised money for an air ambulance”.

Oral Hearing

[28]Finally, Bhatt Murphy argue that the decision of the Supreme Court in Osborn and Booth v Parole Board [2013] UKSC 61 is such that the Claimant should be offered an oral hearing.[29]Schedule 22 of the Criminal Justice Act 2003 provides at paragraph 11 that “(1) an application… is to be determined by a single judge of the High Court without an oral hearing.” These are clear words. They do not preclude there being an oral hearing (Hammond [2004] EWHC (Admin) 2753) but place the onus upon a party seeking an oral hearing to show why oral evidence or oral representations should be received in addition to the full written representations on the merits which will have been submitted.[30]The Divisional Court in Hammond [2004] EWHC (Admin) 2753 considered that a procedure without the need for a further oral hearing was in both the public interest and in the interest of individual defendants in most cases. There would be rare cases where oral representations might be required, and even rarer cases where oral evidence might be required. It was for the judge in each case to determine whether such evidence or representations were required. This depended on a close examination of the issue or issues to be decided, the full written materials available and submitted, and the nature of the oral hearing sought. The Divisional Court directed that where a defendant whose term came for review considered that oral evidence or representations were required he should make a separate but simultaneous application to the court in writing for hearing, setting out precisely the reasons why that evidence or representations were needed in addition to the full written representations on the merits which had been submitted.[31]Hammond was determined at a time before the decision in Osborn and Booth was reached: a notable feature of its time was that there was then a considerable backlog of applications for judges to set the appropriate tariff, which had previously been done administratively. Bhatt Murphy draw attention to both these points, in suggesting that there should be an oral hearing in the present case.[32]Though these points are not without force, the statutory provision remains unaltered, and in my view sets the default position from which a court should part only for good and strong reason. Though reasons have been advanced by Bhatt Murphy, these do not draw attention to anything specific to which oral representations or evidence might be directed. Their submission is that “in the event the court is minded to reject these written submissions, fairness would suggest that an oral hearing is necessary and that the application process would be aided by an oral hearing”. This gives no reason, but merely assertion.[33]Essentially, the point being made is that it is fair for there to be an oral hearing, and unfair for there not to be. A procedure is needed, submit Bhatt Murphy which pays “due respect” to persons whose rights are affected by decisions to be taken in the exercise of administrative or judicial functions. This is, however, balanced by the proviso that this is where that person has “something to say which is relevant to the decision to be taken”. That needs carefully to be identified.[34]I have considered these submissions carefully. I am prepared to accept that a court is nowadays more likely to order an oral hearing, after Osborn and Booth, than it was at a time when there were many more “tariff” cases in the pipeline waiting judicial assessment. However, I have had full submissions on paper. There is no suggestion that in any particular respect my decision would be assisted by oral representations or evidence. It is difficult, in particular, to see how they could cause a re-assessment of the views expressed by those who have provided reports specifically for the current process.[35]I have concluded that there is insufficient in the present case to persuade me to depart from the statutory position. There will be no oral hearing.

Conclusion

[36]There is much to be said to the credit of the applicant. The question is whether overall this amounts to “exceptional and unforeseen progress”. I do not rule out that his progress may, if the current course is maintained, later do so. Thus far, however, there is insufficient to demonstrate that it meets what is a relatively high standard. The reports from those who know him best and can best provide objective assessments of his progress when compared to others agree that the progress does not exceed that which is to be expected. The number of courses completed is a sign of such progress, but take matters little further. The other criteria upon which I might reduce the tariff are inapplicable.[37]Having reviewed the term, in the light of such development and progress as there has been, I have ultimately concluded that the tariff should remain as originally set by the Court of Appeal. The application is dismissed.