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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: [2009] EWHC 1629 (Admin)

Case No: 2008/18/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/07/2009

Before :

THE HONOURABLE MR. JUSTICE OPENSHAW
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Between :

 REGINA 
 - and - 
 Stuart William MORGAN 

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Criminal Justice Act, 2003, Schedule 22
Judge’s Order under Section 269

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Approved Judgment


 
The Hon. Mr. Justice OPENSHAW :
 
1. On the 16th October 1996, following his conviction for murder, after a trial at the Crown Court at Worcester before Mr Justice Latham and a jury, the applicant, Stuart William Morgan, was sentenced to the mandatory term of life imprisonment. The judge recommended that he serve 20 years before being considered for release by the Parole Board. In due course, that recommendation was endorsed by the Lord Chief Justice, Lord Bingham. By letter dated 4th November 1998, the Secretary of State notified the applicant that he had fixed a minimum term of 20 years. The applicant has now applied under paragraph 3 of Schedule 22 Criminal Justice Act 2003 for the High Court to review that minimum term. 
2. Paragraph 4 of the Schedule requires the court to consider the seriousness of the offence, having regard to the general principles set out in Schedule 21 and to any recommendation made to the Secretary of State by the trial judge and by the Lord Chief Justice and, by necessary inference, also to the minimum term notified by the Secretary of State. By paragraph 3 (1) (a) of Schedule 22 of the Act, the term fixed by the High Court cannot be greater than that fixed by the Secretary of State.
3. The facts, as found by the trial judge are as follows. The victim was a 19 year old French girl, Celine Figard; she was travelling from her home in France to Fordingbridge, Hampshire.  A friend of her parents, who was a lorry driver, gave her a lift as far as Ashford in Kent, where she arrived at about 1 o'clock on the afternoon of the 19th December 1995; the lorry driver handed her over to a friend of his, another French lorry driver, who took her to the Chieveley service station at the junction of the A34 and M4.  They arrived at about 4 o'clock. She then looked for a lorry driver who could take her on to Fordingbridge.  The applicant was the driver of a white Mercedes lorry, he offered her a lift, probably pretending that he could take her at least as far as Salisbury.  She accepted; at about 5 o’clock that evening, they left the service station. She was not seen alive again.  Her naked body was found in a wood next to a lay-by on the A449 north of Worcester on the 29th December, in circumstances which suggested that her body had been left there some time in the early hours of that morning.
4. The post mortem established that sexual intercourse had taken place at some time before her death. Death was the result of three or four heavy blows to her head, which had caused substantial fractures to her skull; there were also fractures to her cheek and jaw bone. She had marks of strangulation from a ligature, probably a belt or strap.  There were no signs typical of forcible sexual intercourse but there were traces of adhesive tape on one of her wrists. The overwhelming probability is that she was raped either when immobilised in some way, or unresisting through threat, or a combination of both. The state of the sperm in her vagina indicated that she had lived for a few hours after the rape.  However, neither the state of the body, nor the other evidence could establish the precise time of death, save that it was consistent with her having been killed on the 19th or 20th December, her body having been kept in a warm environment for some time, and then subjected to cold temperatures, either in the lorry over the Christmas period when the defendant was not working, or in some other cold environment.
5. On the night of the 28th/29th December 1995, the defendant had driven to the Telford area to make a delivery.  In the morning, he was seen lighting a fire by his lorry which he later explained as having been necessary in order to thaw out the valves on his air brakes.  Later examination of the area uncovered a pair of socks which belonged to the victim, a 10 centime coin, a pair of pants which tested positive for blood and semen and which been cut, and a bra which had also been cut.  The prosecution suggested that the defendant had had to cut both these items in order to remove them from her dead body.  Although his tachograph was consistent with a journey to Telford, an overnight rest, and a return journey to Southampton, the prosecution were able to shown that the tachograph had been disconnected so as to disguise any movement during what purported to be the rest period, enabling him to travel to the lay-by to deposit Celine’s body without leaving a trace on the tachograph.
6. When seen by the police during the routine investigation of all drivers of white Mercedes lorries, he asserted that he had not been any where near Chieveley on the afternoon of the 19th December 1995.  He told the police that he had travelled that day from Lees to Southampton via the M1, M25, M3 and M27.  He was later to produce a tachograph purporting to confirm that account, but which was clearly concocted for the purpose.
7. When his property was subsequently searched, the police discovered a large number of items of Celine’s property, in particular personal documents and photographs.  They also discovered in his garage a lower bunk for a Mercedes lorry the cover of which had been washed, but the interior of which proved to be heavily stained with blood; that blood could not be used for blood matching or DNA analysis because it was too degraded.  His lorry was examined; the interior had been shampooed, but enough spots of blood were discovered to enable DNA to be recovered which matched Celine’s.  The pattern of the blood staining was consistent with Celine having been lying on the bunk when savagely beaten about the head.
8. The defendant when interviewed originally denied having had any contact with Celine; when that was shown to be a lie, he changed his story and admitted that he had picked her up at Chieveley service station.  He claimed that he had had sexual intercourse with here with her consent and indeed encouragement at about 8.30 on the night of the 19th December 1995. He said that when she left him, she was well and uninjured. He persisted in this story at the trial. Indeed, it seems that he still does so.
9. In my judgment, this was a particularly grave offence. It is clear that the defendant abducted his victim, raped her, brutally murdered her and then dumped her naked body by the roadside. The judge, who heard the trial, considered that his retention of some of her belongings suggested that that he wished to retain some sort of memento of what had happened.
10. It seems clear to me that if this murder was to be committed now, this is likely to be found to be a murder ‘involving sexual … conduct’, the seriousness of which is likely to be ‘particularly high’ and which may well attract a starting point of 30 years.
11. I have read the representations made by the applicant at the time, which amounts to a challenge to the correctness of the conviction. These points were fully considered by the Court of Appeal (Criminal Division) on 4th February 1998, when the court dismissed his application for leave to appeal against conviction. Beldam LJ, giving the judgment of the court, described the evidence against the applicant was being ‘overwhelming’ – as indeed it was.
12. I have also read the representations, dated 21 January 2009, made on the applicant’s behalf by Mr Purdon. He repeats the applicant’s claim that the sexual intercourse between them was consensual, which was rejected by the trial judge and by the Court of Appeal. His claims that the sentence should be mitigated on the grounds that the offence was spontaneous and lacked pre-meditated are, frankly, quite unrealistic. He suggests that the relevant starting point at the time was 14 years and even now he suggests that it would be only 15 years; but, even if this is right, which I do not accept, the aggravating factors to which I have already referred justify a very substantial uplift, at least up to 20 years and maybe beyond.
13. As to the applicant’s convictions: he had been sent to Borstal training back in 1974 for three offences of burglary. He had no convictions for any sexual offence relevant. Although not, therefore, of good character, I accept that his convictions have no relevance to fixing the minimum term, as he himself pointed out in his letters to the Secretary of State, dated 27th January and 25 February 1997 (which I have read).
14. I have read a psychiatric report from Dr Neil, dated 22nd April 1996; the applicant does not suffer from any mental illness.
15. I have also read the representations by the CPS, dated 24 April 2009, and the short response by the solicitors representing the applicant dated 26 May 2009; neither take the matter much further.
16. Subject to the claim that he has made ‘exceptional progress’ in prison, for the reasons which I have already set out, I consider this to be a very grave offence of sexually motivated murder, aggravated by the concealment of the body; I think that that the minimum term of 20 years was - and is - entirely appropriate; if he was to be sentenced now for such an offence, a minimum term of – or approaching – fully 30 years would be inevitable.
17. Mr. Purdon now argues on the applicant’s behalf that has made exceptional progress since his conviction.  It is true that he has completed various prison courses; he has worked hard and now has enhanced status; he has no prison adjudications against him; the personnel officer on his landing even described him as a ‘model prisoner’; all this may be commendable but there is nothing in the least exceptional here; it represents the orderly progress of a ‘lifer’ through his sentence plan.
18. Mr. Purdon complains that the prison authorities refuse to provide reports of this progress, unless ordered to do so by the court, but his application is accompanied by a sheaf of reports on his progress, all of which I have read. There is no need to obtain yet more reports; I accept at face value what I have read but, in my judgment, the progress here established falls very far short of the high bar set in R v Caines [2006] EWCA Crim 2915.
19. The applicant claims to be entitled to an oral hearing as a matter of principle; I reject this claim. Schedule 22, paragraph 11(1) provides that ‘[the] application … is to be determined by a single judge of the High Court without an oral hearing’.  Although exceptionally an oral hearing may be ordered (Hammond [2004] EWHC (Admin) 2753); no compelling reason has been made out in this case for doing so. I can perfectly properly determine this case on the written representations.
20. I therefore find that the applicant has not achieved ‘exceptional progress’. Accordingly, there is no reason to reduce the minimum term otherwise appropriate, which I fix at 20 years.
21. I note that the fact that the applicant continues to protest his innocence in the face of truly over-whelming evidence; this makes him unsuitable to attend other courses, which may reduce his risk of sexual offending; this failure may in due course affect the decision of the Parole Board as to the danger which he might present on release but it cannot, I think, bear upon the minimum term which he should serve by way of punishment and deterrence; I have, therefore, not taken this point into account in my determination.
22. I order, as I am required to do, that the term of 20 years is reduced by the period of 7 months and 24 days which he spent in custody on remand before being sentenced. 
23. I am anxious that this sentence is not misunderstood or mis-reported. The sentence is – and remains – a sentence of imprisonment for life. The defendant may not even be considered for release until he has served at least 20 years (less the time served before sentence). That is not to say that he will then be released; indeed he will be detained unless and until the Parole Board is satisfied that he no longer presents a risk to the public. Even if the Parole Board decides then or at some time in the future to authorise his release, he will be upon licence which will extend for the rest of his life. Many prisoners are in fact detained for many years after their tariff has expired.
24. A copy of this judgment should be sent to the Parole Board.

 


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