Kyle Kinghorn, Re [2025] EWHC 1275 (Admin)

[2025] EWHC 1275 (Admin)Case No 2022/4/YOR
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22 May 2025
The decision of Mr Justice Johnson
on review of the tariff in the case of Kyle Kinghorn
Approved Judgment
MR JUSTICE JOHNSON
[1]On 21 December 2011, the applicant, having been convicted of murder, was sentenced to detention at Her Majesty’s Pleasure with a minimum term of 16 years less time spent on remand. The applicant’s tariff expiry date is 9 July 2026.[2]The applicant applies for a reduction in the minimum term by application of the principles identified by the House of Lords in R (Smith) v Secretary of State for the Home Department [2005] UKHL 51; [2006] 1 AC 159. The application has been referred to the court by the Secretary of State pursuant to section 27B of the Crime (Sentences) Act 1997.

The offence

[3]In July 2010 the applicant was aged 16 years and 8 months. On 2 July 2010 he was a member of a gang and he travelled in a stolen car to a school in South London, with 4 other gang members. On arriving at the school the group, armed with knives, chased two boys, including 15-year-old Zac Olumegbon. Zac was stabbed multiple times. He died from two fatal stab injuries to his heart. The applicant did not directly stab Zac, but he was guilty of murder as a secondary party to the offence. Mercifully, the other boy survived his injuries. The sentencing judge said the attack was an act of retribution on a rival gang, and that it was a well planned, organised and armed attack on two defenceless youths.[4]I have been provided with a victim personal statement which explain the devastating and enduring impact that Zac’s death had on his close and loving family. Notwithstanding that impact, they have chosen to forgive the applicant and the others who killed Zac thereby, as they put it, turning something that was meant for evil into something good.

The Applicant’s progress since conviction

[5]I have been provided with a number of documents. Aside from the remarks of the sentencing judge, and the victim personal statement, the papers include:(1) A list of adjudications.(2) A security report.(3) A report of Dr Laura West, Psychologist, dated 20 November 2020.(4) Tariff assessment reports from the applicant’s offender supervisor and manager.(5) Representations on behalf of the applicant written by Lucy Waterstone of Reece Thomas Solicitors.[6]The applicant has now been in custody for almost 15 years. Just over 1 year remains until his current tariff expiry date.[7]The applicant has received 14 sanctions in respect of 12 adjudications. However, he has not received any adjudications since May 2018, a period of almost 7 years, albeit he was involved in passing drugs in 2019. He has committed a number of programmes in custody, including the Thinking Skills Programme in which he identified factors that were linked to his offending, the Therapeutic Community intervention (a voluntary intervention) at HMP Dovegate and the victim awareness course at HMP Swinfen Hall. He has, over the course of many years in custody, come to accept his role in the death of Zac such that he now takes full responsibility for his part in the offence, expresses remorse and evinces a commitment to addressing his risk factors.[8]He has worked within the prison as a learning support assistant within drama class. In that context, he is described as a “natural team leader” and “very intelligent”. He is an open day representative and gives visitors (such as visiting criminal justice students) an overview of the prison. He is also an equalities representative and a listener. He has studied a number of courses, including for a degree in Business Management and Marketing, something of which he is justifiably proud. He has achieved enhanced status on the incentives and earned privileges scheme. Neither his attitude nor his behaviour have caused staff concerns.

The test to be applied when deciding whether to reduce the tariff

[9]A sentence of detention during Her Majesty’s Pleasure is “a special sentence devised to reflect the reduced responsibility and special needs of those committing murder as children or young persons… It has been an important and distinctive feature of the sentence of HMP detention that the detainee should be subject to continuing review so that the detainee may be released if and when it is judged appropriate to do so” (see Smith at [10]). The continuing review of the tariff is the responsibility of the Lord Chancellor and the Secretary of State for Justice. In practice, the review is carried out by a judge who may recommend (on certain grounds) that the tariff be reduced. The Lord Chancellor has agreed to honour any recommended reduction in tariff.[10]Under the regime that has operated since Smith there are three possible grounds on which a tariff may be reduced: 1. The prisoner has made exceptional progress during his sentence, resulting in a significant alteration in his maturity and attitude since the commission of the offence. 2. There is a risk to the prisoner’s continued development that cannot be significantly mitigated or reduced in the custodial environment. 3. There is a new matter which calls into question the basis of the original decision to set the tariff at a particular level.[11]The “Criteria for Reduction of minimum term in respect of HMP Detainees”, produced by the National Offender Management Service on behalf of the Secretary of State, states that factors that indicate exceptional progress may include a prisoner having demonstrated:
“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 prison staff; and 4) Successful engagement in work (including offending behaviour/offence-related courses).” 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 prison staff; and 4) Successful engagement in work (including offending behaviour/offence-related courses).”
[12]The document says that, ideally, all of these factors should have been sustained over a lengthy period and in more than one prison. Further, “[t]o 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.” Examples given include raising money for charity. Ideally, it is said, there would need to be evidence of sustained involvement in more than one prison over a lengthy period.[13]With effect from 28 June 2022, the system for considering applications to review the minimum term in these circumstances has been put on a statutory basis by sections 27A and 27B of the Crime (Sentences) Act 1997, inserted by section 128 of the Police, Crime, Sentencing and Courts Act 2022. Sections 27A and 27B of the 1997 Act state: “27A Sentence of detention during Her Majesty’s pleasure imposed on a person under 18: application for minimum term review(1) This section applies to a person who— (a) is serving a DHMP sentence, and (b) was under the age of 18 when sentenced; and such a person is referred to in this section as a “relevant young offender”.(2) A relevant young offender may make an application for a minimum term review to the Secretary of State after serving half of the minimum term.(3) An “application for a minimum term review” is an application made by a relevant young offender for a reduction in the minimum term. … (5) Where the Secretary of State receives an application under this section, the Secretary of State must— (a) consider the application, and (b) unless the Secretary of State forms the view that the application is frivolous or vexatious, refer it to the High Court. … (8) In this section— “DHMP sentence” means a sentence of detention during Her Majesty’s pleasure imposed (whether before or after this section comes into force) under a provision listed in column 1 of the table in subsection (9); “minimum term”, in relation to a person serving a DHMP sentence, means the part of the sentence specified— (a) in the minimum term order made in respect of the sentence… “minimum term order”, in relation to a DHMP sentence, means the order made under [section 269 of the Criminal Justice Act 2003]. (10) For the purposes of subsection (4), an application for a minimum term review is determined— (a) when the court makes a reduction order or a decision confirming the minimum term (see section 27B)… (11) There is no right for any person who is serving a DHMP sentence to request a review of the minimum term other than that conferred by this section. 27 B Power of High Court to reduce minimum term (1) This section applies where the Secretary of State refers an application for a minimum term review made by a relevant young offender under section 27A to the High Court. (2) The court may— (a) make a reduction order in relation to relevant young offender, or (b) confirm the minimum term in respect of the offender’s DHMP sentence, and a decision of the court under this subsection is final. (3) A reduction order is an order that the relevant young offender’s minimum term is to be reduced to such part of the offender’s DHMP sentence as the court considers appropriate and is specified in the reduction order.(4) In deciding whether to make a reduction order, the court must, in particular, take into account any evidence— (a) that the relevant young offender’s rehabilitation has been exceptional; (b) that the continued detention or imprisonment of the offender for the remainder of the minimum term is likely to give rise to a serious risk to the welfare or continued rehabilitation of the offender which cannot be eliminated or mitigated to a significant degree.(5) In this section “DHMP sentence”, “minimum term” and “relevant young offender” have the same meaning as in section 27A.” (a) is serving a DHMP sentence, and (b) was under the age of 18 when sentenced; and such a person is referred to in this section as a “relevant young offender”. (a) consider the application, and (b) unless the Secretary of State forms the view that the application is frivolous or vexatious, refer it to the High Court. “DHMP sentence” means a sentence of detention during Her Majesty’s pleasure imposed (whether before or after this section comes into force) under a provision listed in column 1 of the table in subsection (9); “minimum term”, in relation to a person serving a DHMP sentence, means the part of the sentence specified— (a) in the minimum term order made in respect of the sentence… “minimum term order”, in relation to a DHMP sentence, means the order made under [section 269 of the Criminal Justice Act 2003]. (a) when the court makes a reduction order or a decision confirming the minimum term (see section 27B)… (a) make a reduction order in relation to relevant young offender, or (b) confirm the minimum term in respect of the offender’s DHMP sentence, and a decision of the court under this subsection is final. (a) that the relevant young offender’s rehabilitation has been exceptional; (b) that the continued detention or imprisonment of the offender for the remainder of the minimum term is likely to give rise to a serious risk to the welfare or continued rehabilitation of the offender which cannot be eliminated or mitigated to a significant degree.

Application of the test to this case

[14]Sections 27A and 27B of the 1997 Act were introduced against the backdrop of an established and well-understood scheme for the consideration of applications to review the minimum in term in these types of case. Nothing in the language of those provisions, or in the explanatory notes accompanying section 128 of the 2022 Act, indicate an intention to change the nature of the test that is applied, particularly in relation to the question of “exceptional progress”. I therefore consider the application by reference to the three limbs set out at paragraph 10 above.[15]New matter which calls into question the original tariff: There is no new matter which calls into question the original tariff.[16]Risk to continued development: I do not consider that this element of the test is made out. There are further opportunities for the applicant to progress within custody, and he is, anyway, now approaching the last year of his minimum term.[17]Exceptional progress: The applicant has clearly made very considerable progress in custody, and this will stand him in good stead when the Parole Board comes to consider him for release in just over a year’s time. He has secured qualifications that will be of considerable value once he is released. He has achieved progress in each of the domains identified in the applicable guidance. Thus, he (now) has an exemplary work and disciplinary record, he has shown genuine remorse and has accepted responsibility for his part in the offending, he has built and maintained successful relationships with fellow prisoners and prison staff, and he has successfully engaged in work, including in offending behaviour and offence-related courses. I also consider that there has been a significant alteration in his maturity and attitude since the commission of the offence.[18]However, what is required is progress that is exceptional, sustained over a prolonged period of time in different establishments and with the additional element of having assumed responsibilities. I regret that whilst the applicant has made considerable progress I do not consider that he quite meets this exceptional standard. I do not therefore recommend a variation of the tariff.

Outcome

[19]It is to the applicant’s great credit that he has made such progress as he has in custody. That will stand him in good stead when the Parole Board consider him for release.[20]However, I do not consider that the stringent test for a reduction in tariff has been shown to be satisfied. I therefore refuse the application. I confirm that the minimum term in respect of the applicant’s sentence remains 16 years less time spent on remand and that his tariff expiry date therefore remains 9 July 2026.