High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number:  EWHC 1826 (QB)
Case No: 2004/353/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Manchester Crown Court,
Crown Square, Manchester, M3 3FL
Date: 26 July 2006
THE HONOURABLE MR JUSTICE BEATSON
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Neither party was represented
Hearing dates: 7-13 May 2002
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Mr Justice Beatson :
1. On 13 May 2002 at Manchester Crown Court Scott Cassidy (hereafter “the applicant”), then aged 24, was convicted of murder and was sentenced to life imprisonment. The period of imprisonment recommended by the trial judge to meet the requirements of retribution and deterrence was 14 years. On 18 May 2002 the Lord Chief Justice endorsed the recommendation of the trial judge.
2. The matter comes before me pursuant to section 276 and schedule 22 paragraphs 5 and 6 of the Criminal Justice Act 2003 (hereafter “the 2003 Act”), to determine the minimum term following which the early release provisions referred to in Schedule 22 are to apply to the applicant and his case can be considered by the Parole Board. This is my determination of that minimum term. For the benefit of the applicant, 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. I have considered the representations on the applicant’s behalf received by the court on 31 May 2005, together with the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2)  1 WLR 2551 (hereafter “the Practice Direction”). That guidance reflects the Court of Appeal’s judgment in Sullivan, Gibbs, Elener and Elener  EWCA Crim 1762 as how to ensure, as section 276 and schedule 22 of the 2003 Act require, that the minimum period for sentences where the offence was, as the applicant’s offence was, committed before 18 December 2003 does not breach the principle of non-retroactivity.
4. The family of the deceased were asked whether they wish to make a statement. I have considered a statement made on 18 July 2004 by the deceased's mother. This sets out the continuing effect of the events and their bereavement on her, her husband and the deceased's brother. As I understand to be the usual practice in these cases, no representations have been submitted to me by the Home Secretary.
5. Paragraph 11 of Schedule 22 of the 2003 Act provides that the application is to be decided without an oral hearing. In this case no application for an oral hearing has been made and I have concluded that this is not one of the “rare cases” (see R (Hammond) v Secretary of State for the Home Department  EWHC 2753 (Admin)) in which an oral hearing is required.
6. The circumstances of the offence are described by the trial judge, HH Judge Sir Rhys Davies QC as follows:
“On 29 September 2001 the defendant stabbed his cousin Greg Cassidy, in the chest with a lock knife as a result of which Greg Cassidy died. The knife was produced in the course of an argument of no great consequence between the two men relating to the purchase of some cannabis. The defendant admitted having the lock knife in the pocket of his jacket, his account for which being that he had used the knife in the course of effecting some electrical repairs to a motor vehicle. A witness one Graham Boyle, however, said that very shortly before the physical confrontation between the two men whilst Greg Cassidy was absent in a nearby house the defendant took the lock knife out of his pocket, opened the blade and dropped it back in his pocket with the blade locked in the open position and that, when the argument developed and Greg Cassidy threw a blow at the defendant, the defendant immediately pulled out the knife and stabbed the younger man in the chest.
The defendant's case was self-defence he maintaining that he was attacked by the deceased and two other men including the witness and he took the knife from his pocket and flailed out with it in a circular motion without specifically targeting any individual or, he said, intending to cause any harm to anyone.”
7. There were no medical considerations before the court. The trial judge commented as follows on the applicant’s dangerousness and likelihood of re-offending:-
“I am satisfied on the evidence that this defendant quite deliberately carried the knife that night and that he was prepared to use it at the slightest opportunity. The killing was wholly unjustifiable. The defendant's expressions of remorse were unconvincing.
There is no doubt that after the stabbing this defendant received a severe beating not least from the deceased himself who was still able to function for a short time. The defendant received an undisplaced fracture of the jaw and medical evidence was put before me that he had a possible cartilage injury to the knee and had reported stress symptoms and nightmares and since November 2001 has suffered from anxiety and depression and is receiving medication.
In the end there is nothing by way of specific aggravation or mitigation which takes this case out of the middle ground of offences of murder and I accordingly recommend a term of 14 years.”
8. It was in view of these comments that the Lord Chief Justice endorsed the trial judge's recommendation.
9. The applicant does not accept the trial judge's conclusion that he was prepared to use the knife which he deliberately carried and the representations made on his behalf state that he is appealing against his conviction. He continues to maintain that he was being attacked by the deceased and two others and flailed the knife in a circular motion without specifically targeting or intending to harm anyone. Those issues are not relevant to the present application which has to be considered on the basis of the conviction, the trial judge's comments, and any representations on behalf of the applicant and by the family of the deceased.
The Statutory Regime
10. Paragraph 6 of schedule 22 to the 2003 Act applies to a prisoner serving a mandatory life sentence who has not been notified by the Home Secretary of a minimum period ("the tariff") which in his view should be served before the prisoner is released on licence and whose term has not expired. It provides that the Home Secretary must refer the prisoner’s case to the High Court, and that the High Court must determine the prisoner’s minimum period. The significance of the minimum period is that it is only thereafter that the Parole Board can direct the prisoner's release on licence assuming first that the Home Secretary 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: see section 28(5)-(8) of the Crime Sentencing Act 1997.
11. Paragraph 7 of schedule 22 provides that, in considering the seriousness of the prisoner’s offence and determining the minimum period, the High Court must have regard to the matters mentioned in section 269(5) and to any recommendation made to the Home Secretary by the trial judge or the Lord Chief Justice as to the minimum period. Paragraph 8 establishes a ceiling for the minimum terms based on the practice of the Home Secretary prior to December 2002. Section 269(5) of the 2003 Act provides:
"In considering…..the seriousness of an offence (or the combination of an offence and one or more offences associated with it, the court must have regard to -
(a) the general principles set out in Schedule 21, and
(b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21."
12. The general principles involved in determining the minimum term set out in Schedule 21 can be identified from the three starting points set out in paragraphs 4 to 6 of Schedule 21, the direction in paragraph 8 that, having chosen a starting point, the court should take into account any aggravating or mitigating factors to the extent that it has not allowed for them its choice of starting point, and the provision in paragraph 9 that consideration of these factors may result in a minimum term of any length, whatever the starting point, or a whole life order.
13. The first of these starting points is a whole life order. Paragraph 4(1) provides that this is the appropriate starting point where 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 the offender was aged 21 or over when he committed the offence. Paragraph 4(2) provides that cases that would normally fall within paragraph 4(1) 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.”
14. The second starting point is a period of 30 years. Paragraph 5 (1) provides that this is the appropriate starting point if 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 the offender was aged 18 or over when he committed the offence. Paragraph 5(2) provides that cases that would normally fall within paragraph 5(1) 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.”
15. The third starting point is a period of 15 years. Paragraph 6 provides that this is the appropriate starting point 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).
16. Paragraphs 10 and 11 set out a number of matters that may be relevant to the offence of murder as aggravating and mitigating factors. Paragraph 10 provides that 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.”
17. Paragraph 11 provides that 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”
18. The use of the word “include” in paragraphs 10 and 11 make it clear that the matters set out do not define what may be an aggravating or mitigating factor and are in this sense only illustrative.
19. Paragraph IV.49.17 of the Practice Direction, reflecting the judgment in Sullivan, Gibbs, Elener and Elener, states that the best guide as to what the Home Secretary's practice would have been where the offence was committed before 31 May 2002 is the letter sent by Lord Bingham CJ to Judges on 10 February 1997. In that letter it is stated that the period to be served for what is described as the average, normal or unacceptable murder is 14 years. That letter also sets out factors his Lordship considered to be capable of mitigating or aggravating the offence (see also the Practice Direction IV.49.18-21).
The grounds upon which this application is made
20. The application submits that a period of 10 years is more appropriate in the circumstances to take account of the evidence at the trial and the progress made by the applicant during his sentence.
The decision in this case
21. The first question for me in determining the applicant’s minimum term is whether, apart from the applicant’s progress during his sentence, there is a justifiable basis for differing from the recommendation of the trial judge and the Lord Chief Justice. I note that, if this case came for sentence today, the starting point pursuant to paragraph 6 of Schedule 21 would be 15 years. Moreover, prior to the implementation of the Criminal Justice Act 2003, since this was an offence committed before 31 May 2002, following the Practice Direction, 14 years is to be taken as the period to be served for the ‘average’, ‘normal’ or ‘unexceptional’ murder.
22. I can find no basis for differing from the views of the trial judge and the Lord Chief Justice. This case is, as the trial judge stated, broadly within the category of case described by Lord Bingham as "average". The applicant's age, and absence of an intent to kill are mitigating factors. But he does not have the benefit of a plea. Moreover, his use of a knife deliberately carried and which the applicant was prepared to use is an aggravating factor.
23. I do not consider the applicant's antecedent record justifies taking his case out of the category of murder Lord Bingham described as "average". The guidance does not include previous good character as one of the factors capable of mitigating the normal penalty. As to remorse, what is required under the guidance is "hard" evidence of remorse. The trial judge was aware that the applicant was receiving medication for depression and was in a good position to judge whether what the applicant said at that time was convincing. That the applicant now feels a sincere amount of remorse for the stabbing by him of a cousin to whom he was close is undoubtedly commendable. It is, however, of only limited relevance to determination of the minimum period as at the date of conviction.
24. I turn to the submission that a tariff of 14 years is unwarranted because of the applicant's progress in custody. The 2003 Act does not refer to this as a factor to be taken into account, although that is not determinative. The issue was considered by the Divisional Court in R (Cole, Rowland and Hawkes) v Secretary of State for the Home Department  EWHC 1789 (Admin) when the Bill that became the 2003 Act was before Parliament. Rose LJ stated (at paragraph 88) that if the Bill were to be enacted without referring to progress as a factor (as it has been), it was “inconceivable, in human terms” that exceptional progress in prison would not be taken into account. The Divisional Court had before it evidence by Mr Morris, the Head of the Tariff Section in the Lifer Unit. Paragraphs 5-10 of his statement are set out in paragraph 11 of Rose LJ’s judgment; paragraph 8 stated that the Home Secretary accepted that the Bill, now the 2003 Act, left it open to the courts to take into account exceptional circumstances, including exceptional progress in prison, in appropriate cases. It is, however, clear from Mr Morris’s statement and from Rose LJ’s judgment that the hurdle that must be overcome for progress to be regarded as “exceptional” is a high one. Normally, as well as the good progress in prison that is expected of all mandatory life sentence prisoners, in broad terms the Home Secretary would look for an exemplary work and disciplinary record in prison, genuine remorse, and successful engagement in work (including offence-related courses) that has resulted in substantial reduction in areas of risk. All these would have to have been sustained over a lengthy period and in at least two different prisons. To reach the threshold of exceptional progress there would also need to be some extra element to show that the lifer had done good works for the benefit of others.
25. It is against this background that the representations made on behalf of the applicant in this case must be assessed. The representations rely on his enhanced status, favourable reports, his position of trust as a wing cleaner, and the fact that he has had only no adjudications in the last one and a half years and only one before then. He wishes to take courses but has been unable to do so save for a painting and decorating course. While there are positive elements in the material before me which is commendable, it goes nowhere near meeting the high requirements for progress in custody to affect the minimum period.
26. In the circumstances, I am of the clear view that the appropriate minimum period which the applicant must serve before the early release provisions are to apply to him is 14 years. From that period is to be deducted the period of remand in custody, namely 15 days. For the avoidance of doubt, the minimum period is unaltered, save for the deduction of the period served whilst on remand.