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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 2673 (QB)

Case No: 2004/38, 39 & 40/MTS

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION


Sheffield Crown Court
50 West Bar, Sheffield, S3 8PH


Date: 8 November 2006

 

Before:

THE HONOURABLE MR JUSTICE BEATSON
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 R 
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 CHRISTOPHER HILLS
ADAM DANIEL SHEPHERD
And
PAUL WALLINGTON 

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Neither party was represented


Hearing dates: 2 - 9 February 2000
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Approved Judgment


 
Mr Justice Beatson:
1. On 9 February 2000 at the Crown Court at Reading Christopher Hills, Adam Daniel Shepherd, and Paul Wallington (hereafter the first, second and third applicants respectively), then aged 22, 19 and 20 respectively, were convicted of murder and were sentenced to life imprisonment.  The period of imprisonment recommended by the trial judge to meet the requirements of retribution and deterrence were 12 years in the case of Christopher Hills, 14 years in the case of Adam Shepherd, and 14 years in the case of Paul Wallington.  On 16 February 2000 the Lord Chief Justice stated that he agreed with the trial judge’s recommendations as to the appropriate minimum periods. 
2. This 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 terms following which the early release provisions referred to in Schedule 22 are to apply to them and their cases can be considered by the Parole Board.  This is my determination of those minimum terms.  For the benefit of the applicants, 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 and material submitted to the court on the applicants’ behalf, together with the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2) [2004] 1 WLR 2551 (hereafter “the Practice Direction”).  That guidance reflects the judgment in Sullivan, Gibbs, Elener and Elener [2004] 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.  The sister of the deceased stated that she did not wish to put her immediate grief and pain at the time of the murder into a statement because those feelings were too personal, that every death of somebody you love is unbearable but that she has found it particularly hard to cope with the fact that her brother did not die in an accident or of illness but was murdered in a senseless violent act and that her family had to live with the pain of the consequences.  As I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State.
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 the first applicant has not requested an oral hearing.  The second and third applicants through their solicitor, Mr Purdon, have requested an oral hearing. 
6. The second applicant's grounds for seeking an oral hearing are that: (i) the facts show that the case is arguably on the borderline of murder and manslaughter which justifies a much lower minimum period, and (ii) he seeks a reappraisal of the facts in the light of the decision in R (Hammond) v Secretary of State for the Home Department [2004] EWHC 2753 (Admin), R v Sullivan [2004] EWCA Crim 1762 and the Practice Direction (Crime Mandatory Life Sentences) (No 2) [2004] 1 WLR 2551.  It is submitted that, as this case does not involve a review of a term hitherto fixed by the Secretary of State, the second applicant is "essentially within the centre of the sentencing process in that this presents as the first consideration of sentencing" and that articles 6 and 14 of the European Convention are engaged so that the applicant is entitled to an oral hearing as a matter of principle.  The application for an oral hearing does not, however, particularise why written submissions do not suffice to set out his case for the reappraisal of the facts or how they should be reappraised.  No reference is made in the application for an oral hearing to the reference by the judge to the second applicant taking a running kick at the deceased's head as if kicking a conversion at rugby (see para 8 below) or how his case can, in these circumstances, be regarded as on the border of manslaughter.  In R (Hammond) v Secretary of State for the Home Department [2005] UKHL 69 Lord Bingham accepted that in the unique situation addressed by paragraph 3 and 6 of schedule 22 to the 2003 Act, fairness will not in many cases, require an oral hearing (see also Lord Rodger at paragraph 33).  In the present case where the applicant does not seek to introduce new facts and the representations do not explain why the reappraisal cannot be made on the basis of written submissions I have concluded that this is one of the case in which fairness does not require an oral hearing. 
7. The third applicant's grounds for seeking an oral hearing are that he is entitled to an oral hearing under Articles 6 and 14 of the European Convention, that the court is not reviewing a decision made by the Secretary of State but is setting the minimum term of the third applicant, a process "within the centre of the sentencing procedure", and that the decision in Hammond (see above) is (as it was when the application was made) under appeal to the House of Lords.  As in the case of the second applicant, the application for an oral hearing does not particularise why written submissions do not suffice to set out his case.  In the light of the decision in R (Hammond) v Secretary of State for the Home Department [2005] UK HL 69, I have considered whether fairness requires an oral hearing and have concluded that this is not one of the cases in which fairness requires such a hearing.
The Background
8. The circumstances of the offence are summarised from the description given by the trial judge, Mr Justice Garland, were that:
“The deceased, his girlfriend and three other women had a night out in High Wycombe travelling in a Mitsubishi Shogun motor vehicle.  Hills, Shepherd and Wallington asked for a lift home in the vehicle to which the driver reluctantly agreed.  Wallington was the former boyfriend of the deceased’s girlfriend and during the journey was abusive to her.  The vehicle was stopped and Hills, Shepherd and Wallington were asked to get out which they did.  There was a verbal exchange between Wallington and the deceased at this point following which a fight started.  All the defendants attacked the deceased who fell to the ground there he was repeatedly kicked and punched to the head and body.  Two kicks, involving great force, fractured his right temple, jaw and also ruptured the membrane between the two hemispheres of his brain, causing internal bleeding from which he inevitably died three days later.  The incident was captured in part on CCTV and showed all three defendants kicking the deceased whilst he was on the ground.  Shepherd in particular is seen taking a running kick at the deceased’s head as if kicking a conversion at rugby: he was an accomplished rugby player.”

9. There were no medical considerations before the court.  The trial judge commented as follows on the applicants' dangerousness and their likelihood of re-offending:-
“This was unpremeditated, unprovoked alcohol fuelled attack in the street in the early hours of the morning involving kicking with extreme force in the presence of a large number of witnesses some of whom knew the defendants on a victim known to all three in the company of four young women also known to them. 
Shepherd was an 18 year old of good education who was due to take up a place in Bristol University in October.  He was also of good character.  In view of his age and the wholly unpremeditated nature of the attack, I would incline to a tariff of 14 years. 
Wallington was 19 at the time of the offence.  He has a number of previous convictions but not for violence to the person.  He was undoubtedly responsible for starting the fight but had moved away before Shepherd delivered the final kick, although probably because of the imminent arrival of the police.  In view of his age and the unpremeditated nature of the attack, I would set a tariff of 14 years.
Hills had some previous convictions but none for violence.  Although two witnesses said that Hills was responsible for bringing the victim to the ground at the beginning of the attack he probably played a lesser part than Shepherd and Wallington.  Although he is somewhat older than they are (22 at the time of the offence), I would be inclined to reflect his lesser role in a tariff of 12 years.”

10. It was in view of these comments that the Lord Chief Justice stated that he agreed with the trial judge's recommendation.
The Statutory Regime
11. 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 Secretary of State 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 Secretary of State 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 Secretary of State 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. 
12. 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 Secretary of State 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 Secretary of State 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."

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13. 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.
14. 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.”

15. 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.”

16. 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).
17. 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.”

18. 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”

19. 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.
The guidance
20. 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 Secretary of State'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 these applications are made
21. In relation to the first applicant I have considered written representations dated 18 October 2004 by his solicitors.  They request the court to fix a tariff below the 12 years recommended by the trial judge and the Lord Chief Justice.  They do so on the ground that there was no premeditation or planning or any other aggravating features in the commission of the offence with the exception of repeated beating of the victim in which the first applicant played a lesser role (as was recognised by the trial judge).  They also point to the fact that the first applicant has received only one adjudication for a failed mandatory drugs test during his sentence and has completed courses in anger management, alcohol awareness, relationship skills, enhanced thinking skills, and personal development.  They also rely on the first applicant's remorse and the fact that he takes full responsibility for the part he played in taking the deceased's life.
22. In relation to the second applicant I have considered representations dated 30 November 2005 made on his behalf by his solicitor Mr Purdon, who also made the request for an oral hearing which I have dealt with in paragraph 6 above.  On his behalf it is said that he initially attempted to diffuse the situation by standing between the deceased and the third applicant Paul Wallington.  The kick is referred to but it is said that it was with the side of the second applicant's foot (it is to be observed that in the representations Mr Purdon has made on behalf of the third applicant, the second applicant's kick is described as "a running kick at the deceased's head").  Notwithstanding this it is stated in the application for an oral hearing although not in the representations that the second applicant's case lies on the borderline between murder and manslaughter. 
23. The representations state that none of the aggravating factors contained in paragraph 10 of schedule 21 to the 2003 Act or listed by Lord Bingham are present and that in the second applicant's case the following mitigating factors were present: an intention to cause serious bodily harm rather than to kill, lack of premeditation, the fact that the third applicant was only 18 years old at the time of the offence, and his deep and genuine remorse.  It is also said that he has made good progress in prison, has completed the courses to which I have referred, and that the post course reports have shown that these have had a very positive and beneficial effect on him.  He is a volunteer tutor and participates in the voluntary drug testing scheme.  I have also considered a number of prison reports, dated 10 April 2001, 18 January 2003 and 26 March 2003 and a note of a conference dated 27 January 2002 in which the second applicant sets out his background and his account of the circumstances of the offence and why he did not admit it at first.  This note is unsigned and contains comments, presumably by his solicitor, for instance that some of what is said by the second applicant is inconsistent. 
24. Mr Purdon has also made representations (undated) on behalf of the third applicant.  On behalf of both the second and third applicants he submits that the 14 year period referred to by Lord Bingham as the period to be served for the 'average', 'normal' or 'unexceptional' murder was, in the light of the statement of Lord Woolf in R v Sullivan [2004] EWCA Crim 172, paragraph [29], intended to cover more serious murders since a lack of intention to kill and lack of premeditation would not otherwise have been factors capable of mitigating the normal penalty. 
25. On behalf of the third applicant, apart from Mr Purdon's representations I have considered representations dated 27 February 2002 by his then solicitor Charles Khan, enclosing letters from his parents, the third applicant, and the manager of a football team for whom he played until the age of 16.
26. Mr Purdon's representations refer to a recommendation by HHJ Richard Brown.  This must be an error since the trial judge who made the initial recommendation was Mr Justice Garland.  The representations also refer to the absence of planning or premeditation, the involvement of alcohol, the absence of a previous record for violent or aggressive behaviour by the third applicant, his age and his remorse.  Reliance is also placed on the courses he has taken and on a prison report dated 1 May 2004 in which it is stated that the third applicant has been involved in de-escalating situations in which prisoners have become angry towards staff, as having no recorded adjudications, and as demonstrating an excellent positive attitude.
The decision in this case
27. The first question for me in determining the minimum term of these three applicants is whether, apart from their progress during their sentences, there is a justifiable basis for differing from the recommendations of the trial judge with which the then Lord Chief Justice agreed.  My conclusion on this question can be shortly stated.  I can find no basis for differing from the views to which I have referred.  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 these were offences 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.  In relation to the submission based on the statement of Lord Woolf in Sullivan (paragraph 29) that Lord Bingham meant the 14 year period to cover more serious murders, and not those where there was no premeditation or intention to kill, I note that in this case the Chief Justice who confirmed the recommendation of the trial judge was Lord Bingham.  Lord Bingham must accordingly have considered this to be more serious than the 'average' murder.  It is clear that under the previous practice, save in the most serious cases, the Secretary of State's practise was to notify a term no greater than that recommended by the judiciary.
28. In this case although unpremeditated and alcohol fuelled, this was an attack by three individuals on the deceased involving kicking with extreme force in the presence of a large number of witnesses, some of whom knew the defendants, on a victim known to all three, in the company of four women also known to them.  Witnesses who had no connection with the victim or his friends described the attack as "vicious", "brutal" and "relentless".  The defendants pleaded not guilty.  The kick by the second applicant was to the deceased's head.  It cannot be said that an attack of this ferocity was on the border of manslaughter.  Its unpremeditated nature was taken into account by the trial judge when making his recommendation.  The recommendation in respect of the first applicant reflected his lesser role in the offence.
29. I turn to the submissions that tariffs of 12 years, 14 years and 14 years are unwarranted because of the progress made by the applicants during their sentence.  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 [2003] 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.
30. It is against this background that the representations made on behalf of the applicants in this case must be assessed.  I have set out the representations above.  They come nowhere near qualifying as 'exceptional' in the sense identified by Rose LJ.
31. In the circumstances, I am of the clear view that the appropriate minimum periods which the applicants must serve before the early release provisions are to apply to them are, in the case of the first applicant 12 years, and in the case of the second and third applicants 14 years each.  From those periods is to be deducted the period of remand in custody, namely 6 months and 28 days.  For the avoidance of doubt, the minimum period is unaltered, save for the deduction of the period served whilst on remand.

 


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