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Minimum terms

High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003



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Neutral Citation Number: [2006] EWHC 3036 (QB)

Case No: 2004/890/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/12/2006

Before :

THE HONOURABLE MR JUSTICE MACKAY
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Between :

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 Andrew Douglas Cole 

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Hearing dates: 26 Oct – 5 Nov 1998
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


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THE HONOURABLE MR JUSTICE MACKAY


 
Mr Justice Mackay:
 
1. The defendant Andrew Cole is an existing prisoner currently serving a mandatory life sentence in respect of which a tariff period of fifteen years has been set by the Secretary of State.  He seeks a review of that minimum term.  The background to this application is a little unusual and needs to be set out.
2. The defendant has been tried twice for the murder of Fiona Ovis and William Crompton in May 1996.  The first trial took place in January 1997.  The defendant ran a defence of diminished responsibility and was convicted by the jury.  The trial judge declared himself “astonished” that jury rejected that defence but, loyal to their verdict, recommended a minimum term of fifteen years. The Lord Chief Justice of the day, in view of the trial judge’s comments as to the surprising nature of the verdict given the evidence that was called in that case, was led to recommend a shorter punitive term of ten to eleven years.
3. That conviction was set aside by the Court of Appeal principally on the ground of the availability of fresh evidence, namely a change of view by the prosecution’s expert witness who, in the light of her observations of the defendant at trial, had formed the view that he was indeed entitled to a diminished responsibility defence.  A retrial was therefore ordered. That trial took place in November 1998 and again resulted in the defence of diminished responsibility being rejected and a conviction on two counts of murder by the jury.  The trial judge on that occasion described the murders as “a particularly terrible case of two planned murders in revenge” and recommended a minimum of fifteen years.  The Lord Chief Justice, still Lord Bingham CJ, said this “had it been possible to regard this man as normal I would have considered  punitive term of at least fifteen years – probably rather longer – as a suitable minimum. As it is I find it difficult to recommend a punitive term on the assumption that this man is normal. I must however accept that two juries have convicted, and two trial judges have recommended a minimum term of fifteen years. I still feel that the real issue here is risk, not punishment, but I accept that minimum of fourteen to fifteen years may be appropriate”.
4. The Secretary of State fixed the minimum term at fifteen years.
5. The circumstances leading up to these events are bizarre.  The defendant, almost from birth, had a difficult relationship with his mother, with whom he would have little contact, and he was effectively brought up by his grandmother.  In his teens he was rebuffed by a girl in a way which has evidently caused him enormous hurt which has lasted all his life. The result was that he took to a reclusive lifestyle, literally barricading himself in his own room, and this led to his compulsory admission to psychiatric hospital where he met the first deceased.  She had problems of her own but the two were immediately attracted and entered into what was from the defendant’s point of view and intense and passionate relationship with what was his first real female friend.
6. Fiona Ovis then formed a relationship with another man, the second deceased in this case, which devastated the defendant. He sought the help of his social worker and was readmitted to hospital. The murders occurred within thirty hours of his being released from this second period of hospitalisation.
7. Taking a small collection of items with him which included a knife, fuel, tape, cord and a tape recorder he went to the place where he knew he would find the two deceased.  By inserting the tape recorder he persuaded himself that he could hear sounds of love-making. He broke into the house and in a frenzied attack inflicted fifty two wounds on Fiona Ovis and thirty eight on her lover. These included significant wounds to their private parts. He then took a car from the house and drove to the local hospital where he admitted what he had done.
8. There was no dispute but that the defendant suffered from a paranoid personality disorder of the obsessive/compulsive type at the time of these events. The issue was whether his responsibility for what he did was substantially impaired and the verdict of two juries was that it was not.  That said, he was on any view a deeply damaged personality at the relevant time.
9. Judicial review proceedings were taken in respect to the Secretary of State’s decision to set the tariff at fifteen years.  The point at issue was that in setting that tariff he was effectively passing sentence on the defendant, and therefore acting in contravention of the Criminal Appeal Act 1968 schedule 2 paragraph 2 which prohibits the passing of a more severe sentence on a retrial than was passed at the original trial.  That argument was based on the courts decision in Lea  [2002]  EWCA Crim 215.
10. In the Divisional Court’s judgment in the judicial review proceedings ( R v Cole and Others [2003] EWHC179 (Admin)) that argument was rejected, on the basis that the schedule of the 1968 Act would not apply to the Secretary of  State in his tariff-setting capacity.  Giving the judgment of the court Lord Justice Rose said at 35 “the High Court can be expected to take into account the terms of Lord Woolfs’ judgment in Lea, and the fact that judicial review of the Secretary of States decision has been sought here.  I would accordingly dismiss Coles’ application”.
11. In written submissions on behalf of the defendants it is argued that the tariff should be reviewed back to the original figure of eleven years on the grounds that there was no change in the evidence in the second trial as compared with the first which pointed to there being any greater severity attaching to the underlying offences.  Indeed, if anything in the second trial the psychiatric evidence was more heavily in favour of the defendant than it was in the first.  The only thing that has changed, and which appeared to influence the judgment of the Lord Chief Justice, was that yet another jury had rejected the defendant’s argument, the burden being on him to establish diminished responsibility. I, however, have to consider the seriousness of the offence and the culpability of the defendant and those have not changed since the Secretary of States first tariff setting exercise.  I see force in that argument.
12. As to whether in exercising my current view function I am myself bound by the terms of the Criminal Appeal Act 1968 Schedule 2 Paragraph 2 (1) a more difficult question arises.  That sub section reads “(1) where a person ordered to be retried is again convicted on retrial, the court before which he is convicted may pass in respect of the offence any sentence authorised by law, not being a sentence of greater severity than that passed on  the original conviction”.
13. The issue is whether exercising this jurisdiction I come within the definition of “the court before which he is convicted…”. The 1968 Act when passed could not be expected to embrace the changes that have occurred since that date, in relation to the setting of life sentence tariffs and  judicial oversight of the same.  It seems to me, however, consistent with the House of Lords seminal decision in Anderson [2003] 1 AC 837 that it can strongly be argued that the tariff-fixing exercise, in which I am engaged in this judgment, is legally indistinguishable from the original imposition of the sentence.  If therefore my decision turned on it I would regard myself as inhibited by the 1968 Act from increasing the tariff figure.
14. My decision however does not depend on this point.  I believe that the arguments advanced on behalf of the defendants are persuasive, and that, notwithstanding the appalling nature of this double murder, considering the then relevant guidance from Lord Bingham in his letter of the 10th February 1997 the outstanding feature of the case acting in reduction of his starting point of fourteen years is the obvious sub-normality or mental abnormality of the defendant, which alone is sufficient to require a significant reduction from that starting point down to eleven years.
15. For these reasons I therefore direct that the early release provisions shall apply to these sentences but that the defendant should not be considered for release until a minimum term of eleven years has passed.  From that term the time spent on remand in custody namely twenty nine months and twenty six days shall be deducted.


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