Hull, On the review of the tariff in the case of [2010] EWHC 74 (QB)

[2010] EWHC 74 (QB)Case No YOR/4/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 January 2010
The decision of
THE HON. MR JUSTICE TOMLINSON
on the review of the tariff in the case of
ADRIAN HULL
Judgment
[1]I have been asked by the Lord Chancellor and Secretary of State for Justice to review the tariff in the case of Adrian Hull and to recommend whether any reduction should be made in the light of the judgment of the House of Lords in R v Secretary of State for the Home Department ex parte Smith [2005] UKHL 51. The Lord Chancellor and Secretary of State for Justice has agreed that he will honour any recommendation for reduction which I make.[2]On 20 November 1997 at Carlisle Crown Court before Morland J and a jury Adrian Hull was convicted of the murder of Nicholas Morrison. The murder was committed on 29 November 1996. Adrian Hull was born on 12 March 1979 so that his age was 17 years 9 months when the offence was committed.[3]Adrian Hull had previous convictions for criminal damage and threatening behaviour, dwelling house burglary and attempted arson.[4]For the murder he was sentenced to be detained at Her Majesty’s Pleasure. The tariff recommended by both the trial judge and by the Lord Chief Justice, Lord Bingham, was 15 years. In May 1999 it was fixed at that level by the Secretary of State.[5]Following the judgment of the European Court in the cases of Thompson and Venables Adrian Hull took up his entitlement to have his tariff reviewed by the Lord Chief Justice of the day. His case was reconsidered by Lord Woolf. In a decision dated 10 October 2003 the Lord Chief Justice noted improvements recently observed in Mr Hull’s attitudes, regarded them as encouraging but recommended no reduction in the tariff of 15 years.[6]As a result of an administrative failure Lord Woolf had not been supplied with certain documents including additional representations made on behalf of Mr Hull. In the light of that documentation Lord Woolf reconsidered his decision. In an amended decision dated 27 November 2003 he recorded that he had reviewed the case as a whole but that having done so he was of the view that the tariff should remain the same.[7]The expiry date of Adrian Hull’s tariff is 2 December 2011.[8]This is the first review of the tariff in the light of the decision of the House of Lords in Smith. The ground for reconsideration here alleged to be relevant is evidence of exceptional and unforeseen progress.[9]In his report to the Home Secretary the trial

judge described the offence in this way:

“Morrison, a 29 year old heroin addict, was alleged to have ‘Grassed’ to the police about the drug dealing activities of the Hull family who are notorious on the lawless Raffles estate in Carlisle. During the night of the 28th/29th November 1996 the Defendant spent most of the time at the home of Amanda Cleminson with her, her sister Donna Jackson and a friend Simon Robson drinking and taking cannabis. These four were all aged between 17 and 20. Shortly before midnight the Defendant’s older brother with two other youths called at the house. The Defendant with these three left the house. In the street outside Morrison was staggering along the worse for drugs. The Defendant’s brother punched Morrison knocking him to the ground. By the time the Police arrived Morrison had recovered and refused Police help. After the Police left the scene, the Defendant followed Morrison into a nearby Park, knocked him to the ground and kicked him in the head. He returned to Amanda Cleminson’s home and then left with Donna Jackson walking to the Park. Morrison was lying on his back, bleeding from his face and gasping for breath. The Defendant then kicked and stamped on Morrison’s head until he was dead. According to the pathologist there were at least 17 separate head injuries which caused diffuse brain damage. After the killing the Defendant and Donna Jackson returned to Amanda Cleminson’s home and then left with Simon Robson returning to the Park. The Defendant and Simon Robson then threw the dead body over a bridge into a beck where it was discovered that morning by a gardener.”
[10]Although he has not always done so, Mr Hull now accepts responsibility for the offence. In representations made on his behalf it is said:
“Mr Hull gives a consistent account of the index offence. As confirmed in the offence summary he accepts that he had consumed both alcohol and cannabis at the time of the commission of the index offence. Both are confirmed as risk factors for him. Motivation for the offence has been thoroughly explored with Mr Hull during his time in custody. Mr Hull submits that it was alleged that the victim, Mr Morrison, had notified prison staff of Mr Hull’s brother’s alleged involvement in drug dealing within the prison system during a previous sentence served by his brother. There was, as a result, some animosity between the Hull family and the victim. Mr Hull accepts that on the night of the offence his brother initially attacked the victim, Mr Morrison. The Police attended at the scene and shortly left. Having observed the victim speaking to the Police Mr Hull then apprehended the victim with a view to establishing what had been said. He accepts that he was agitated. Mr Hull caught up with the victim who by this time was in a nearby park. Without provocation Mr Hull attacked the victim by punching him, knocking him to the ground and then kicking him in the head. At this stage Mr Hull then left the scene. Later that evening he went out with the intention of buying cannabis. His route took him through the park where the victim was still located. Mr Hull was accompanied by Donna Jackson, a female friend. Mr Hull was surprised to note the presence of the victim still in the park. His point of dispute is the suggestion of a second attack at this stage on the victim. He submits that this was not the case. Having established that the victim was still in the park, on the floor, following the earlier attack he left the scene and went to see a friend, Simon Robson. At this point both Mr Hull and Mr Robson returned to the park. Mr Robson established that the victim was dead. Mr Hull accepts that at this stage he was involved in carrying the victim to the bridge and throwing the body over the bridge into the stream.”
It follows that, notwithstanding his denial of a second attack upon the victim, he accepts responsibility for inflicting the fatal injuries.[11]The trial judge, in recommending a minimum term of 15 years, took into account both the Defendant’s youth, turbulent childhood and parental example and the merciless and prolonged manner of the killing and the motive for it. The learned judge was of the view that there was a clear likelihood of serious re-offending in the event of premature release. The trial judge referred specifically to the notoriety of Mr Hull’s family in the estate on which he grew up, together with their involvement in crime and drug dealing. The motive for the offence, “grassing” on the whole family for drug dealing, was regarded by the judge as significant.[12]Adrian Hull was undoubtedly brought up in an unstable and dysfunctional environment and at the time of the offence he had a long history of emotional and conduct problems. He was assessed as having a low level of intellectual ability and his educational attainment was negligible. All this was well-documented and taken into account by the trial judge in fixing the appropriate tariff.[13]Mr Hull served the first part of his sentence at HMYOI Castington. Subsequently he has been at HMP Garth, HMP Parkhurst, HMP Haverigg and most recently HMP Risley. It is said in representations dated 20 January 2009 and written on Mr Hull’s behalf that he has been in Category C conditions since January 2008. Two Tariff Assessment Reports written in September 2008 recited that he was about to be or indeed had already been re-categorised as a Category B prisoner and returned to the Category B system. I do not know by whom the detainee’s representations have been prepared and I have no definitive information as to Mr Hull’s current status. I shall assume that what is said on his behalf in that regard is correct. If he has indeed not been re-categorised, that tends to support his account that the allegations and suspicion on the strength of which he was transferred from HMP Haverigg were without foundation.[14]Progress at Castington was not encouraging. Mr Hull accepted that his drug and alcohol use had been problematic. He accepted that he had been drinking almost every day since about the age of 13 and that in addition he was a regular user of cannabis, ecstasy, valium and amphetamines. He denied the use of any “hard” drugs. Mr Hull recognised that his substance abuse would have to be addressed whilst in custody but he undertook no courses whilst at Castington. Initially Mr Hull’s behaviour in custody was good as demonstrated by his gaining Enhanced status. During this period his older brother was also held in Castington but his release, together with the serious illness of two young relatives, prompted a deterioration in Mr Hull’s behaviour resulting in him being moved to the Segregation wing. Report writers stated that Mr Hull did not wish to mix with immature younger prisoners as he feared that he might assault them and preferred to stay on the Segregation wing for this reason. By this stage Mr Hull had amassed 29 adjudications mainly for refusing to return to normal location. It was however also noted that Mr Hull had little in the way of external support. His mother had only visited once in two years and his father had not visited him since a Lifer Day in December 1999. The lack of support was described, not unnaturally, as a source of great upset to Mr Hull and was compounded by his segregation which kept him apart from other prisoners.[15]Progress at Garth and Parkhurst was better, perhaps reflecting the natural process of his achieving greater maturity. A Sentence Planning and Review Board conducted in April 2003 noted that since the previous review Mr Hull had completed courses in Reasoning and Rehabilitation, Assertiveness and Family Relationships. Mr Hull himself felt that the Reasoning and Rehabilitation course would help him in dealing with problems and his seconded Probation Officer recognised that he had been able to put into effect some of the skills learned. He was then on the waiting list for the CALM course (Controlling Anger and Learning to Manage it) and also an Alcohol Awareness course. His targets were to remain drug-free and to further his education. His general behaviour was described as having been good but it was noted that he had received an adjudication for possession of hooch. It had apparently been accepted by the Governor that Mr Hull had been bullied into holding it but his involvement was still regarded as a concern given that alcohol abuse had played a significant role in his offending. It was noted at this time that Mr Hull had received visits from his girlfriend and was also in touch with his parents and brothers.[16]Progress reports prepared at Parkhurst in the summer of 2007 noted that Mr Hull had settled well into his new establishment. He had been given a trusted job in the laundry and had been accepted as gym orderly. On the debit side however in July 2005 he had received two adjudications for the possession of needles and steroids. Mr Hull explained that he had obtained these in order to build up his body in response to rumours about the regime at Parkhurst. In the opinion of report writers this demonstrated ineffective coping strategies. Despite the adjudications Mr Hull was however on the Enhanced level of privileges and he did not present a control problem. These adjudications in July 2005 are the last recorded against him. By this stage he appeared to demonstrate genuine remorse and regret for his actions. Since the previous review he had completed CALM and substance awareness courses in 2004 and had obtained CARATS certificates in cannabis awareness and anger management in 2006. Courses in literacy and numeracy were also successfully negotiated. It was concluded that Mr Hull had started to address his risk through successful participation in all the courses that had so far been recommended, particularly in the areas of emotional management and coping strategies. However in the opinion of a psychologist Mr Hull needed further and more intensive interventions to address his drug and alcohol problems. The most recent Offender Assessment System assessment, in 2006, classified as “medium” both the risk of Mr Hull re-offending and the risk posed to the public. Report writers were nonetheless content that he should be given an opportunity to progress to Category C conditions as this would enable testing in a less secure environment.[17]Thus it was that in January 2008 Mr Hull was moved to Category C conditions at HMP Haverigg. It was towards the end of his stay there that there were prepared the two Tariff Assessment Reports to which I have referred in paragraph 14 above.[18]The first report is by the Lifer Manager at Haverigg. He reports:
“Currently, Mr Hull is demonstrating a desire to complete one-to-one work on victim awareness. He tells me that he believes that he has benefited from the programmes that he has completed thus far and is motivated to lead a legitimate lifestyle upon release. His capacity to successfully do so may be supported by a process of natural maturation which has occurred during his period of incarceration.”
Question 5 on the standard form asked the Lifer Manager:
“In your view, has the detainee shown exceptional progress in custody beyond what is expected of all life sentence prisoners?”
His response was “No exceptional progress shown”. Finally at section 6 the Lifer Manager said this:
“In the last few months Mr Hull has being (sic) mentioned in several security reports at HMP Haverigg, these all relate to being involved in the drug culture at HMP Haverigg. He is about to be Re-categorised to a Cat B prisoner and returned to the Cat B system. He has recently lost his job in the Visits due to suspicion of drug involvement, but at this time has remained Enhanced until the investigation has been completed.”
[19]The second report is by Mr Hull’s seconded Probation Officer. At the end of this report she writes:
“Of significance, is that recent persuasive information from Security Intelligence indicates that Mr Hull is involved in the drug culture at HMP Haverigg. As a consequence, Mr Hull has been transferred to another establishment.”
This lady’s other conclusions and observations are coloured by this information. Thus in paragraph 2 she writes:
“Given Mr Hill’s current status linked to his transfer to another establishment, it is difficult to argue that a process of natural maturation has significantly impacted upon his capacity or indeed willingness to desist offending.”
Likewise, her answer to the question at section 5, the content of which I have already set out above, is “Given the current security concerns which are referred to in section 6, it is difficult to argue that Mr Hull’s progress through the prison system has been anything other than unexceptional”.[20]In the representations made on Mr Hull’s behalf it is said that at no time was he advised that re-categorisation was under consideration. He is aware that his removal from HMP Haverigg followed an investigation into his suspected involvement in the supply of drugs at that institution. It is asserted on his behalf that no concrete evidence exists and that Mr Hull understands that the evidence amounted to anonymous notes from a fellow prisoner. He says that he was not subject to any targeted searches by the Dedicated Search Team, that he was not subject to any Mandatory Drug Testing on the basis of suspicion and that his behaviour did not otherwise give cause for concern. It is said that Mr Hull understands that the Governor will on occasion act on information in order to protect the good order and discipline within a prison. Nonetheless, there is recorded Mr Hull’s vehement denial that he is or has at any stage of his sentence been involved in the drug culture within the prison where is was located. It is said on his behalf that he would not wish to jeopardise the imminent consideration of his suitability for transfer to open conditions. It is said on his behalf, and there is nothing to contradict it, that since his transfer to HMP Risley his behaviour has not given cause for concern. It is said that on arrival he immediately liaised with the relevant parties as part of his sentence planning process. He has not been subjected to re-categorisation nor has there been any change to his Incentives and Earned Privilege status.[21]Furthermore, it is said on his behalf that his attendance on courses has been only one aspect of his change. He has responded positively to the change of environment and the structure that comes with it. He has taken every opportunity provided to him to engage in both offence and non-offence focussed work. It is said that his confidence and self-esteem have grown and that he has responded positively to the trust placed in him through his positions of employment whilst in custody. Upon arrival at HMP Risley he was security cleared to work as a wing cleaner. He was also made responsible for placing orders for supplies. The job afforded him the opportunity to move around the wing and to work in the main unsupervised. This is a trusted position of employment in the prison. More recently, Mr Hull has it is said been approved to work as an “insider”. This involves him working on a rota basis with those inmates arriving via reception at the prison. Mr Hull meets with inmates arriving at the establishment and explains the procedures and facilities available at the prison. Following their allocation to the Induction wing Mr Hull continues to have input and liaises with new arrivals to offer reassurance and to deal with any concerns they may have. This is a trusted position of employment in relation to which Mr Hull abides by the rules governing the role, including of course issues of confidentiality. It is pointed out on his behalf that he is the Wing and Lifer Representative and that he has recently applied to be a mentor as part of the mentoring programme offered at HMP Risley to assist those in the process of learning to read and write. He has applied to become a Prison Listener.[22]In conclusion, it is said on Mr Hull’s behalf that he submits that throughout his time in custody he has met all targets set for him in order to reduce perceived risk factors. He has co-operated fully with the assessment process and been pro-active in meeting those targets set for him. It is said that in terms of exceptional progress, Mr Hull has not simply achieved the minimum standards expected of him, but has given real thought as to how he can better his circumstances, achieve both educational and vocational qualifications, and open up a wealth of opportunities to assist him in the future to lead a healthy, useful and law abiding life.[23]What is said on Mr Hull’s behalf, which I assume to be factually correct, redounds to his credit. It is in the nature of the exercise with which I am concerned that any failure to recommend a reduction in the prescribed tariff may be perceived as a failure to recognise progress made and to constitute a dispiriting and discouraging rejection of the effort put in by the detainee to that end. However the question which I have to ask myself is whether the progress made is exceptional and unforeseen. A conclusion that it is neither should not be taken to be dismissive of the detainee’s achievements. It is unfortunate that I am faced with a situation in which the prison authorities have reported and acted on the basis of what is said to be persuasive information where however the detainee denies all involvement and I am presented with no evidence. In those circumstances I am prepared to assume in Mr Hull’s favour that the allegations are unfounded, and I do so assume. That notwithstanding, I agree with the assessment that the progress shown by Mr Hull, whilst commendable, is no more than is to be expected of a life sentence prisoner, particularly one who has begun his sentence at a relatively young age and whose progress would naturally be expected to improve with increasing maturity. As is stated in his own representations, the focus now is on consolidation of the skills already learned and completion of booster/relapse prevention work as he progresses towards release. Whether he is released on the expiration of the tariff period is of course a matter for the Parole Board, but it has not in my judgment been demonstrated that that first target date should be brought forward.

Cited in 1 later judgment