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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: [2008] EWHC 1800 (QB)

Case No: 2004/767/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/08/2008

 

Before :


MR JUSTICE GRIGSON

 

APPLICATION BY  COLIN PITCHFORK                                                                                             
FOR THE SETTING OF A MINIMUM TERM PURSUANT TO SCHEDULE 22, PARAGRAPH 3 OF THE CRIMINAL JUSTICE ACT 2003

 

 

DECISION


 
Mr Justice Grigson: 
 
1. This is an application by Colin Pitchfork for the setting of a minimum term pursuant to Schedule 22 paragraph 3 of the Criminal Justice Act 2003.

2. The Applicant, pleaded guilty to 2 offences of murder, 2 offences of rape, 2 offences of indecent assault and one offence of conspiracy to pervert the course of justice.  He was sentenced by Otten J. as follows:

(1) For each murder – imprisonment for life.

(2) For each rape – 10 years imprisonment.

(3) For each indecent assault – 3 years imprisonment

(4) For the conspiracy to pervert the course of justice – 3 years imprisonment

All sentences to be served concurrently.  Otten J. specifically said that he made no recommendation as to the minimum term, and that is noted on the Court record

3. In 1988 a judge sentencing a Defendant for murder was not obliged by statute to make a recommendation.  He would make a recommendation unless the crime was so heinous or the offender so dangerous that life should mean life.  It is plain that Otten J regarded the Applicant as so dangerous that it was inappropriate to make a recommendation.  He could have found the heinous nature of the offences also justified that course.

4. When Otten J completed his report to the Home Secretary he made no entry under para. 7.  Para. 7 is for the trial judge to record, the factors which led him, if he did, to conclude that a minimum recommendation under section 1(2) of the Murder (Abolition of Death Penalty) Act 1963 was necessary

5. He did complete para. 10.

“Trial Judge’s view on the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offences.

He should only be released when the Authorities are satisfied that he is no longer a danger to women.  In any event, in view of the serious, callous and cunning conduct the actual length should be not less than 20 years.”

6. Lord Lane, Chief Justice endorsed on that report

“25 years minimum, but from the point of view of the safety of the public I doubt if he should ever be released.”

7. My understanding of the intentions of both the trial judge and the Lord Chief Justice is that the Applicant should not be released until he no longer presented a danger to the public.


8. On the 2nd November 1994 the Applicant was notified as follows:

“The Secretary of State of the day gave careful consideration to the facts of the case, the nature of the offence in question and the comments of the judiciary.  He concluded that the heinous nature of the offences warranted a significantly higher tariff than that recommended by the judiciary.  He therefore set the tariff at 30 years.”

9. The term of 30 years is to reflect the requirements of retribution and deterrence.  It does not reflect ‘dangerousness’.

10. In dealing with this Application, under Para. 4(1) of Schedule 22 the Court must have regard to:

(a) The seriousness of the murder and of offences associated with the murder

(b) The length of the notified minimum term.

11. Para. 4(2) requires the Court to have regard to:

(a) The general principles set out in Schedule 21 of the Criminal Justice Act 2003 in determining the seriousness of the offence.

(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 Applicant.

12. Para. 3(1) a provides that any minimum term set by this Court must not be greater that the notified minimum term.

13. Schedule 21 sets out three categories of seriousness.  Each one has a starting point:

(a) Para. 4(1)a.  Where the offender is over 21 and the seriousness of his conduct is exceptionally high, the starting point is a whole life order.

(b) Para. 5(1)a & b.  Where the offender is over 18 and the seriousness is particularly high the starting point is 30 years.

(c) Para. 6.  Where the offender is over 18 and the case does not come within (a) or (b) above, the starting point is 15 years.

14. The seriousness of the offender’s conduct is to be determined by the criteria set out in para. 4(2). [Exceptionally high cases] and 5(2) [Particularly high cases].  Conduct which does not qualify for either comes into the third category of seriousness.

15. Having determined the starting point, the Court may either increase the minimum term or reduce the minimum term depending upon whether there are aggravating or mitigating features other than those which have determined the seriousness of the conduct.  Some of those factors are listed under the relevant headings in Para. 10 and 11 of Schedule 21.

16. Section 143 provides that previous convictions are an aggravating factor: Section 144 provides that a guilty plea is a mitigating factor.

17. Having thus ascertained the minimum term the Court must deduct from it time spent in custody on remand in relation to the index offence.

18. Good conduct whilst in prison is of great importance to the Applicant and to those responsible for his progress within the prison system.  It is not one of the factors required to be taken into consideration by statute.  Exceptional progress should be recognised by some reduction in the minimum term.

19. Where there is evidence of the effect of the murder upon the victim’s family, the Court must give proper consideration to that material.

20. Material before the Court: 

i) The Home Office file including trial judge’s report

ii) Sentencing remarks

iii) Submissions on behalf of the Applicant

iv) Statements from the families of the victims.

v) The Applicants response to 20(iv).

vi) Further submissions on behalf of the Applicant by Atter Mackenzie dated 7th July 2008.

I have considered all of that material.  The letter from the father of Dawn Ashwell and the letter from her mother are especially moving – as is acknowledged by the Applicant himself.

21. Facts:

In 1983 The Applicant raped and then murdered Lynda Rosemary Mann a 15 year old schoolgirl.  In 1986 he raped and then murdered Dawn Amanda Ashwell a 15 year old schoolgirl. He killed each girl to prevent his identification as the rapist.  Each girl was strangled.  The rape of Dawn Ashwell was particularly violent and it is probable that she was buggered.

22. When the police started collecting blood samples to employ the then technique of identification by DNA analysis, the Applicant persuaded another man to give blood in the Applicant’s name.

23. These attacks were premeditated.

 

24. Starting Point.

These murders are properly described as ‘heinous’.  There can be no doubt but that today the offences of murder associated as they are in each case with the rape of the victim would qualify as ‘exceptionally high’ and a whole life order would be made in respect of each.

25. In each case the victim was young and vulnerable.  In each case the motive was sexual, possibly sadistic.  The murders were callous and calculated.  The only mitigation was that the Applicant pleaded guilty

26. Submissions on behalf of the Applicant.

Messrs. Atter Mackenzie submit that the Applicant has made ‘exceptional progress’ whilst in prison.  I am not going to detail his achievements as to do so might be to his disadvantage.  I simply say that this is the first case of this type which I have seen where the progress made by the Applicant can properly be described as exceptional.

27. Earlier submissions made on the Applicant’s behalf argue that the minimum term should be 20 years on the basis that this was the term set by the trial judge.  This is to misunderstand and misinterpret the sentence actually passed by Otten J.  He made ‘no recommendation’ which was the equivalent of a ‘whole life order’.  That is the context in which both his remarks and those of the Lord Chief Justice on the Report to the Secretary of State should be seen.  In any event Otten J actually said “not less than 20 years”

28. Conclusion. 

This Court cannot increase the term actually notified to the Applicant by the Secretary of State.  If I could, I would have made a ‘whole life order’ which is what Otten J intended.  In all the circumstances here, the 30 year term notified to the Applicant is properly described as modest.

29. The power to reduce the minimum term to reflect ‘exceptional progress’ whilst in prison is discretionary.  The discretion must be exercised in the context of a) the nature of the offences and b) the minimum term notified.  In my judgment it would be wholly inappropriate to reduce what I regard as a modest sentence for truly horrific crimes.

30. It is a factor which the Parole Board may take into account.

31. I fix the minimum term at 30 years on each count of murder, less the 4 months and 1 day the Applicant spent in custody on remand.


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