McIver, Re minimum term [2005] EWHC 1935 (QB)

Case No 2004/463/MTS

[2005] EWHC 1935 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date Friday, 09 September 2005

Before

MR JUSTICE LEVESON

SETTING OF A MINIMUM TERM IN RELATION TO BARRY McIVER

PURSANT TO PARAGRAPH 3, SCHEDULE 22 OF THE CRIMINAL JUSTICE ACT 2003

Judgment

Mr Justice Leveson :

[1]On 18th July 2003, in the Crown Court at Preston, Barry McIver (then 35 years of age) pleaded guilty before me to the murder, on 8th January 2003, of Geoffrey Broadhurst. He was sentenced to imprisonment for life and, in accordance with the prevailing practice, I reported to the Secretary of State in relation to the tariff period that he should serve. At the same time, he pleaded guilty to an offence of robbery committed on 24th January 2003, for which he was sentenced to a term of 7 years imprisonment, that sentence to run concurrently with the term of life imprisonment.

[2]Pursuant to section 276 and Schedule 3 of the Criminal Justice Act 2003 (“the 2003 Act”), the Secretary of State has referred the case of Mr McIver to the High Court for the determination of the minimum term following which the early release provisions referred to in Schedule 22 are to apply to him. This is my determination of that minimum term; for the benefit of the Mr McIver, I set out the matter in some detail bearing in mind the provisions of paragraph 12 of Schedule 22 of the Act which requires me to give my reasons in ordinary language.

[3]For the purposes of my decision, I have considered the representations and material submitted to the court on his behalf together with the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2), unreported, 29th July 2004 set out in Archbold, Criminal Pleading Evidence and Practice, 2005 paragraph 5-251.

[4]Paragraph 11 of Schedule 22 of the 2003 Act provides that the application is to be decided without an oral hearing. In Regina v. Secretary of State for the Home Department ex parte Hammond

[2004] EWHC 2753 (Admin)

, the Divisional Court reviewed this provision and concluded that it did not exclude the possibility of an oral hearing in those cases in which the Judge considered such a hearing was required although it described the prospect as “rare”. Mr McIver has not sought such a hearing in this case.

[5]As I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State. The representations that I have received from members of the family of the deceased are contained in a victim personal statement prepared by a Victim Liaison Officer and refer only to the brutality of Mr Broadhurst’s murder.

The Offence and the Recommended Tariff

[6]The facts of the offence appear from my report in these terms:

“The defendant, who is a heavy drinker, murdered (having tortured and sexually abused) Geoffrey Broadhurst.. The murder (which appears to have been committed on 15th January) was only detected when he was arrested ten days later for a robbery committed the previous day at a second hand shop where he was recognised. When he was arrested for that robbery, following caution he volunteered: “I killed Geoff a couple of weeks ago, he’s at Yew Tree Gardens”

. A search of those premises revealed the body of the deceased; when arrested for that offence, he replied “I’ve got a drink problem it’s why I did it”. The circumstances emerged from the defendant’s admissions albeit confirmed in large part by the subsequent investigation. He told the police he had been a “drinking partner” of Mr Broadhurst who he met after his release from prison on 8th January 2003 and who allowed him to sleep at his home. On about 14th January, the defendant believed that he had overstayed his welcome and threatened Mr Broadhurst, removing his keys and £11 but thereafter swearing an oath that he would not hurt him. He then attempted to cut Mr Broadhurst’s hair and beard, together with his eyebrows; in so doing, he cut Mr Broadhurst’s face. Although he said the events were hazy, he appears later to have attacked Mr deceased with a kitchen knife when he was in bed causing cuts to his face, chest and left hand which the defendant tended. The two men drank together that evening and the following morning. That afternoon ‘for a bit of a laugh’, the defendant cut off the deceased’s trousers, and the replacement trousers he then put on. He then told him to strip and ripped his underpants off. He then tied the hands of the deceased behind his back and gagged him, later tying his ankles together and to his wrists and placing a flex around his neck. He then cut him to the chest (drawing no blood) and, having smeared his anus with margerine, penetrated his back passage with a dining fork a number of times. He then cut across his legs and feet and carried him to the bedroom, describing his state as “drink fuelled rage”. He wrapped a duvet around the head of the deceased and subsequently lasted out with the knife inflicting a serious injury to the left side of his neck severing the jugular vein and carotid artery causing death. He could not explain his motivation. The pathologist noted 11 injuries to the head, injuries to the neck comprising a deep incised wound 11 cm in length gaping up to 5 cm exposing the jugular vein and the spine, another wound to the right shoulder, three stab wounds to the chest, other incised wounds (the longest being 39 cm in length), multiple incised wounds, abrasions, ligature marks and bruises. There was a fractured cartilage in the abdomen and two fractured ribs. There was evidence of strangulation with sufficient force to have caused death and the pathologist concluded that the deceased had been tortured, the numerous injuries causing ‘acute pain and suffering’. No explanation was offered for the defendant’s conduct but it is important to note that the offences for which the defendant was released from a 30 month sentence in January 2003 (namely false imprisonment and assault occasioning actual bodily harm) were committed with another man against another drinking companion whose hair had been cut with a razor causing ‘excruciating pain’ and who had thereafter been punched and whipped with a belt. That victim’s clothing (including his trouser legs) had then been cut. All three had then slept and the following morning, when the victim was left locked in his own flat, he had escaped by jumping out of a window.”

[7]I summarised the medical considerations placed before the court in these terms:

“Psychiatric Reports from Dr Jenny Shaw (dated 8th April 2003) and Dr P. R. Snowden (dated 20th May 2003) reveal that although the Defendant suffers from a personality disorder (which Dr Shaw believed could be a dissocial personality disorder although Dr Snowden did not consider that there was sufficient evidence so to categorise it) and alcohol dependency syndrome, such abnormality of mind as there was (described by Dr Snowden as mild to moderate rather than severe) would not substantially diminish his responsibility. It appears that he has experienced violent and sadistic fantasies for some years, even when not under the influence of alcohol.”

[8]My view on the period of years to be served in custody necessary to meet the requirements of retribution and general deterrence, including factors of aggravation and mitigation, was expressed in this way:

“In my judgment this case falls into the very serious bracket (see paragraph 18 of the Practice Statement) on the grounds that the offender’s culpability is exceptionally high and: (a) there is the clearest evidence of sadism, gratuitous violence and sexual maltreatment, humiliation and degradation before the killing and committed over a period of two days; (b) there were extensive and multiple injuries inflicted prior to death. The evidence of previous similar offending (albeit not causing death) also represents an aggravating feature. The only mitigating features are the timely admission (prior to the discovery of the body) which included details of aggravation which might not otherwise have been capable of proof) and the expressions of remorse for what he had done. Making all possible allowance for the mitigation, having regard to all the circumstances, I recommend a tariff to meet the requirements of retribution and general deterrence of 20 years.”

[9]Although my recommendation was intended to be passed to the Lord Chief Justice for his comment prior to the matter being placed before the Secretary of State for a decision to be made, the change in the law and practice has meant that these further steps have not been taken.

[10]Prior to his sentence, Mr McIvor spent 5 months and 20 days on remand in custody. Having regard to the terms of the 2003 Act, the issue that now falls to me to determine (as opposed to advise upon) the minimum period that must elapse before section 28(5) to (8) of the Crime (Sentences) Act 1997 are to apply. The significance of this minimum period is that it is only thereafter that the Parole Board can direct the prisoner’s release on licence assuming first that the Secretary of State has referred his case to the Board and secondly that the Board is satisfied that it is no longer necessary for the protection of the public that he should be confined. It is thus necessary to set out the statutory regime within which I am called upon make this judgment.

The Statutory Regime

[11]By virtue of paragraph 6 of Schedule 22 of the 2003 Act, the case of a prisoner serving a mandatory life sentence who has not been notified by the Secretary of State of the minimum period (“the tariff”) which in his view should be served before that prisoner may be released on licence must be referred by him to the High Court in order that an order can be made.

[12]It is appropriate to set out two further provisions of this Schedule 22 as follows: “7. In considering under subsection (3) or (4) of section 269 the seriousness of an offence (or the combination of an offence and one or more associated offences associated with it) in a case referred to the High Court under paragraph 6, the High Court must have regard not only to the matters mentioned in subsection (5) of that section but also to 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. 8. In dealing with a reference under paragraph 6, the High Court – (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) …”. (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) …”.

[13]Section 269(5) of the 2003 Act provides:

“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.” (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.”

[14]The determining factor of “seriousness” reflects section 269(3)(a) of the Act and concerns the appropriate measure of punishment in a particular case taking into account “pure retribution, expiation, expression of the moral outrage of society, maintenance of public confidence in the administration of justice, deterrence, the interests of victims, rehabilitation and so on” (see per Lord Bingham of Cornhill in Regina v. Secretary of State for the Home Department ex parte Anderson

[2002] UKHL 46

para 7,

[2003] 1 AC 837

at page 874A.

[15]To identify the general principles set out in Schedule 21, I turn to the starting points set out in paragraphs 4 to 6 in these terms: “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) 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.” (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, (a) the murder of two or more persons, where each murder involves any of the following – (i) 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, (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.

[16]Having chosen a starting point, the court is enjoined to take into account any aggravating or mitigating factors to the extent not allowed for in the choice of starting point (paragraph 8) and then, in the light of a detailed consideration of these factors, to determine a minimum term of any length (whatever the starting point) or a whole life order (paragraph 9). The aggravating and mitigating features set out in paragraphs 10-11:

“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, (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. 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” (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.

(g) the age of the offender”

The Appropriate Minimum Period

[17]For the purposes of this case, it is sufficient to list the criteria in paragraph 5 to appreciate that, had this case fallen to be sentenced today, it is inevitable that the starting point would have been 30 years: it is undeniable that this murder involved sexual or sadistic conduct which, in the context of this case, encompasses the aggravating feature of mental or physical suffering inflicted on the victim before death. His plea of guilty would attract a discount broadly of no more one sixth or 5 years whichever be the less: see Regina v. Last

[2005] EWCA Crim 106

referring to the view of the Sentencing Council Guideline expressed by Lord Woolf CJ (at paragraph 12) to be appropriately taken into account even in relation to offences even prior to the Guideline coming into force. Thus, the minimum period under the 2003 Act would be no less than 25 years.

[18]In those cases in which a minimum period has not been set by the Secretary of State, I repeat that paragraph 8 requires the court not to make an order 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, [he] would have been likely to notify”. That demands an assessment of the likely period that would have been determined under the old law and, in particular, in the light of the Practice Statement handed down by the Lord Chief Justice on 31st May 2002 (to which I specifically referred when making my recommendation). That required a starting point of 15/16 years under the category of evidence of sadism, gratuitous violence or sexual maltreatment. In fact, all three were present in particularly serious forms in this case and there was the further aggravating factor relating to his previous record and similar conduct (which is also relevant when risk comes to be assessed at the end of the minimum period). The only relevant mitigating feature was the timely plea of guilty.

[19]In his representations, Mr McIver referred to his genuine remorse and explains that he believes that he attacked “one of the few [friends he] had” in frustration, having turned to drink on his release from custody. He points to his likely age assuming release at tariff and believes that he would benefit from a reduction. He will not, of course, be released in any event until the Parole Board conclude that he no longer represents a risk to the public. I recognise the substantial period that he will remain in custody and underline that I have given weight to his remorse as particularly reflected by his guilty plea.

[20]Although I have reconsidered the exercise that I undertook when recommending that the minimum term should be 20 years, I see no reason to alter that assessment. It is difficult to imagine a more serious case of sadistic and gratuitous violence involving the sadistic infliction of injury and sexual abuse prior to causing death: a substantial increase on the starting point set out in the Practice Statement was inevitable. Indeed, my only concern has been that this might have been one of those cases in which the Secretary of State increased the judicially recommended tariff. In the end, I have not adjusted my conclusion because it is also important to ensure that appropriate recognition is given to Mr McIver’s plea of guilty. As I have made clear, I cannot make an order longer than the assessment that I make of the period that the Secretary of State would have notified, notwithstanding that it is less than that which would have been imposed under the 2003 Act.

Conclusion

[21]In the circumstances, I remain of the clear view that the appropriate minimum period which Mr McIver must serve before the early release provisions are to apply to him is 20 years. From that period is to be deducted the period of remand in custody, namely 5 months 20 days. The minimum period determined as required by Schedule 22 of the 2003 Act is, therefore, 19 years 6 months and 10 days.