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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 2591 (QB)

Case No: 2004 /243 / MTR
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION


Newcastle upon Tyne Crown Court

Date: 20th October 2006


Before:

THE HON MR JUSTICE ANDREW SMITH
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Between:

 Regina  
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 BRIAN BINGHAM 

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APPROVED JUDGMENT
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic


  

 

 

 

 

 

 

 

 

 

 


The Hon. Mr Justice Andrew Smith


1. This is an application under schedule 22 of the Criminal Justice Act 2003.   The applicant, Brian Norman Bingham, is an “existing prisoner” within the meaning of that schedule.   He pleaded guilty to the murder between 7 and 10 July 1989 of his wife, Karen Bingham, and on 2 February 1990 at the Crown Court at Stafford he was sentenced to life imprisonment.      He was notified in writing by the Secretary of State that the minimum period which in the view of the Secretary of State should be served before his release on licence was 18 years.  The application is that I should order that the early release provisions under the 2003 Act should apply to him after a shorter period.    It is not open to me to order that they should apply after a longer period.    

2. Paragraph 4 of schedule 22 to 2003 Act provides that in dealing with an application of this kind the court must have regard to (i) the seriousness of the offence, (ii) the effect that section 67 of the Criminal Justice Act, 1967 (which concerns periods of detention awaiting trial) would have had if the applicant had received a determinate sentence, and (iii) the length of the term notified to the applicant.    As for the second of these considerations, I am satisfied that in this case I should reduce the minimum term by 203 days, that being the time that the applicant spent in custody before sentence.
3. In considering the seriousness of the offence, paragraph 4 of schedule 22 provides that the court must have regard to the general principles set out in schedule 21.   Schedule 21 provides that in the case of an offender aged 18 years or over when he committed the offence (and the applicant was aged 29 years when he murdered his wife) the “appropriate starting point” for determining the minimum term is 30 years if the court considers that the seriousness of the offence is particularly high, and that a court should normally consider the seriousness of a murder particularly high if it is “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)”.    If the court does not consider the seriousness of the offence “particularly high” (or worse), the starting point is a minimum term of 15 years.  Having chosen a starting point, the court must consider aggravating or mitigating factors.    The schedule provides that, among other considerations, “a significant degree of planning or premeditation” may be an aggravating feature and that “lack of premeditation” may be a mitigating feature.   
4. Schedule 22 also provides that in considering the seriousness of the offence the court must have regard to any recommendation of the trial judge or the Lord Chief Justice.  In this case, the trial judge, Judge J, recommended a minimum term of 18 years and the Lord Chief Justice agreed with that recommendation.   In his report to the Home Secretary, Judge J described the offence as follows: “Bingham murdered his wife.  The murder was coldly premeditated and carefully planned.  The motive was to benefit financially from her death”.    In his comments upon the case he referred to the applicant speaking when interviewed by the police of his intention to commit suicide, and Judge J said that he was satisfied that the applicant had no such intention.    He also referred the “the absence of any real sense of remorse” on the part of the applicant, and expressed the view that the applicant “is a dangerous man.  If at liberty, he would be capable of committing further crime for the same motive”.      The applicant disputes these matters (as he did when admitting the murder to the police and has done consistently in representations since he was sentenced) and argues that there was no proper basis upon which Judge J could have reached these conclusions.   
5. The purpose of the provisions introduced in the 2003 Act for determining minimum terms and of their retrospective application is to bring about compliance with article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”).   Schedule 21 requires me to consider questions of premeditation and financial motivation.  I am conscious that Judge J, hearing the matter relatively soon after the murder, might have considered material not now available to me, and it is the more difficult to examine his conclusions so long after the events because it is no longer, it seems, possible to ascertain what evidence was considered by Judge J in 1990, and no record of the hearing before him is available.   However, it would not be right for me, and in my judgment it would be inconsistent with the statute and its purpose for me, simply to adopt the conclusions of Judge J on these questions, which are obviously important to the determination of this application.     This is not a case in which the judge reached his views after a trial.   Upon the guilty plea, no evidence, I understand, was heard, there was no basis of the plea, and it is probable (and I was told that it is the recollection of Mr Martin Wilson QC, who represented the Crown in February 1990) that no mitigation at all was advanced on the applicant’s behalf: none of this would be remarkable in 1990.
6. None of the material then relied upon by the prosecution was presented to the Court by the applicant when he made his application, and accordingly, at a procedural hearing on 24 May 2005 at which I heard from Mr Kris Gledhill, counsel, representing the applicant and Mr Rupert Mayo instructed by the Staffordshire Crown Prosecution Service, I sought the assistance of the Crown.   Mr Mayo has drawn up a document dated 27 April 2006 identifying relevant material and I have now been supplied by the Crown with two lever arch files of documents including witness statements and records of police interviews with the applicant in July 1989, documents relating to the financial affairs of the applicant and his wife together with a report on them compiled by a Detective Superintendent, and the prosecution case summary prepared for the trial.   On the basis of this, Mr Mayo invites me to conclude that there was adequate material to support the conclusions expressed in Judge J’s report to the Home Secretary and to set the tariff accordingly.   In a response dated 29 June 2006 Mr Gledhill disputes this and submits that the written material was such that the court could and should conclude that the minimum term should be of the order of 12 years.     I am grateful to both counsel and to the Staffordshire Crown Prosecution Service for the assistance that I have received, although understandably it has taken a considerable time to assemble the relevant material and this has caused regrettable delay in determining this application.
7. It is, of course, open to the court to hold an oral hearing upon the merits of an application of this kind and to hear evidence, although it has been said that it will be rare for such oral hearing to be required, and even rarer for oral evidence to be required: Hammond, [2004] EWHC (Admin) 2753 para 42.    Mr Gledhill referred in his submissions to the possibility of an oral hearing on the merits of the application, but rightly recognised the obvious difficulties in making on the basis of oral evidence factual findings about matters that happened some 17 years ago.   For reasons that will become apparent in this judgment, I have been able to determine this application without oral argument upon the issues to which I have referred and without oral evidence. 
8. The applicant married his wife, Karen, in May 1984.   The marriage was not a happy one.     They had no children and by 1989 they were generally sleeping in separate rooms.   They lived in a bungalow in Uttoxeter that the applicant had inherited from his mother, who had died in April 1984, and that had been conveyed into their joint names in September 1985.   On the night of 8/9 July 1989, the applicant went with an iron bar or spike to his wife’s bedroom.    He struck her head several blows with the bar and killed her.    She had defence injuries and she either was awake when attacked or woke during the course of the attack.  The pathologist believed, and it is probably the case, that she was struck while sitting on the side of her bed.  The applicant later told the police that he then opened the window, threw the bar into the garden, and left the room and went into the garden.  From there he climbed back through the open window into the bedroom, and then climbed out again: he said that he returned because he wanted to be certain that his wife was dead.    
9. After the killing, the applicant took steps to make it appear that Mrs Bingham had been killed by an intruder: he arranged her body and clothes to give the appearance of a sexual attack.  He put his gloves and other clothes that he was wearing into plastic bags and weighed them down with stones from the rockery.     He drove to a reservoir and threw the bags into it.   When they did not sink, he retrieved them and punctured them.    In the course of doing so, he wet his clothing and he later discarded that clothing too.
10. Having returned home to Uttoxeter, the applicant set about cleaning the house and car, and acting as if he did not know that his wife was dead: he went to buy a newspaper and took the dog for a walk.    Then he made a cup or mug of tea and left it on a hall table, as if for his wife.   At about 9.00am, he went to his neighbours and told them that he thought his wife was dead, explaining that he had found her when he took her tea and appearing to be upset and crying.

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11. The applicant was arrested by the police later on 9 July 1989 and maintained his innocence.    He was released from custody on 11 July 1989, and on 12 July 1989 he collected his wife’s car from the police station.   The police kept him under surveillance, and they saw him drive to the reservoir, climb over a wall and re-appear with some clothing that he put in the car.    When approached by the police, the applicant tried to run off.  He was caught, and admitted to the police that he had murdered his wife.    At the Stafford police station, he told the police that the clothes that he was wearing when he killed his wife were in the reservoir, and later showed the police where he had got rid of them and the other items.
12. The applicant was again interviewed by the police on 12 July 1989 and admitted the killing.   He was charged and committed for trial on 12 October 1989.   He entered a plea of not guilty on 12 January 1990, but on 2 February 1990 he was re-arraigned and pleaded guilty. 
13. It seems to me that there are five considerations that do or might bear upon the question whether the murder was coldly premeditated and financially motivated.     First, the applicant was in financial difficulties.    He admitted this when first interviewed by the police and does not dispute it.    When the applicant inherited the bungalow, it was unencumbered, but he borrowed against it and by the time of the murder, the property was charged with debts of some £45,000.     The applicant and his wife had other debts: their credit cards had been suspended because they had defaulted upon the minimum required payments, and in July 1989 the Royal Bank of Scotland, HFC Bank and the Nationwide Anglia Building Society wrote about overdrawn accounts and overdue debts.  
14. According to the report of Judge J, the financial problems were the result of the applicant being “wildly extravagant” and Mrs Bingham “made no material contribution to these debts”.    This picture is denied by the applicant, and I am not able to determine from the material before me quite how the debts arose.  However that be, I cannot accept that this should in any way affect the minimum term that the applicant must serve for his wife’s murder.
15. Secondly, Mrs Bingham’s life was insured.  According to the report of Judge J, the total of insured sum was £144,000, and also on her death an annual payment of nearly £2,000 was payable to her estate.     It appears that this information derives from a report compiled by Detective Superintendent Turner, who identified four insurance policies.     There is no reason to suppose the policies were taken out shortly before Mrs Bingham’s death, still less as part of the plot on the part of the applicant to kill her: indeed the evidence shows that at least one of the policies was taken out before Mrs Bingham married the applicant.  
16. Thirdly, this was not a case of a spontaneous domestic killing done in the heat of the quarrel.    On any view, the applicant found in the garage the iron bar with which he struck his wife, and returned to the house with it in order to kill her.
17. Fourthly, after the murder, the applicant took calculated steps to cover up what he had done.   He arranged his wife’s body to make it appear that an intruder killed her; he disposed of clothing; and before calling the neighbours he went through an elaborate charade in order to give the impression that he did not know that his wife was dead.
18. Fifthly, it might be said that even when he admitted to the police on 12 July 1989 that he had murdered his wife, he continued to tell lies about what he had done.    In particular, he gave the police an account of considering three options, of the couple selling the bungalow, paying off their debts and moving to start a new life; of the couple separating; and of the couple committing suicide.   He went on to tell the police that his decision was to kill his wife and then to commit suicide.    Judge J concluded that the applicant never intended to commit suicide.
19. The applicant contended, in written representations dated 10 May 2004, that the killing was “a spontaneous action resulting from an eruption of emotions, following a period of acute stress”.    He referred to trying to live up to expectations of his parents, describing his father as adopting “a strict Victorian attitude towards life with an uncaring nature”; to the pressures of increasing debts and a “chaotic financial situation developing”; to overwork; and to the failure of his marriage, culminating in his wife telling him on the night before he murdered her that, “she no longer loved me and wanted nothing more to do with me”.  
20. It is not suggested by Mr Gledhill that the killing was entirely unpremeditated and unplanned: the question, as he puts it, is “whether there was a short period of planning in the context of being pushed over the edge or a lengthy amount of planning”.        He realistically acknowledges that there is “a difference between a murder occurring in the course of an argument, where the assailant picks up an item to use as a weapon in the heat of the argument … and the current situation, where a decision was made to kill and it was carried out”; and that there was “the level of premeditation necessary to put into place a plan and carry it out”.   
21. It is in this context that I must consider whether there is a sufficient basis for me to find financial motivation for the murder, and to assess the extent to which it was planned.    The fact that the applicant and his wife faced financial difficulties is consistent with the applicant’s account as well as financial motivation.   The fact that the applicant would have benefited financially from his wife’s death (if he had been innocent of causing it) does not in itself mean that he was so motivated.   I do not regard the way in which the murder was carried out as indicating more planning than the applicant accepts.     Nor am I able to accept that the steps taken after the killing, although undoubtedly measured and directed to covering up the offence, were so sophisticated and elaborate that they are indicative of extended planning before the killing.    After all, as Mr Gledhill pointed out, the applicant was caught by the police when moving incriminating evidence, which does not on its face reflect meticulous planning.   Even if it is the case that when interviewed by the police on 12 July 1989 the applicant minimised his culpability, for example untruthfully claiming that he had it in mind to kill himself (and I shall refer to this question further later in this judgment), in my judgment this does not in itself show advance planning or financial motivation.
22. I have concluded that there is not sufficient evidence that the murder was financially motivated or that it was calmly planned over some days (as I understand the remarks of Judge J to suggest) for it to be right for the applicant’s minimum term to be determined upon that basis.      If this case were being considered shortly after the murder, some judges might hear evidence (by way of a Newton hearing) in order to explore these questions further, although I am inclined to think that even in those circumstances this would not be required, but I certainly do not consider that this course should be adopted after so long.  
23. I therefore must consider the minimum term that the applicant should serve having regard to the seriousness of the offence and in this context the general principles set out in schedule 21 of the 2003 Act.   I consider the appropriate starting point to be 15 years.    I do not consider that is a case which would normally call for the longer starting point of 30 years.   In particular, I do not consider that it falls within paragraph 5(2)(c) of the schedule: while it might be said that, knowing of the policies, the applicant expected to gain as a result of the death, it seems to me that the phraseology “murder for gain” used in the schedule indicates that this sub-paragraph is directed to the purpose of or motive for the murder, or at least of or for activity that led to the victim’s death, and this view is supported by the statutory examples of murders done in the course of robberies or burglaries and murders done for payment.     (I should add that Mr Gledhill also submitted that paragraph 5(2)(c) is directed to murders done by those making a living out of killing and not to domestic murders done in order to solve debt problems.  I see no reason so to restrict the application of the paragraph, and would not have acceded to this argument had I taken the same view of the facts as Judge J.)
24. Paragraph 10 of the schedule includes among the factors that may be relevant to aggravate the seriousness of an offence of murder “a significant degree of planning and premeditation”.  While, as I have explained, I do not conclude that this murder was “coldly premeditated” as Judge J described, I consider that even upon the applicant’s account, there was a degree of planning that can properly be regarded as significant and that aggravates the offence.  No other aggravating factor identified by the schedule is present in this case, and the applicant had no previous convictions of any kind (which might, under section 142 of the Act, have been treated as aggravating features).  However, the schedule does not purport to identify all aggravating features exhaustively, and I consider it right to bear in mind the ferocity of the attack upon Mrs Bingham.     
25. In this case none of the potentially mitigating factors listed in paragraph 11 of schedule 21 was present. Whatever stress the applicant felt, it is not, and could not be, suggested that it in any way amounted to him being provoked.     Nor would I consider that any thoughts that the applicant might have had about committing suicide should go to reduce the minimum term: he does not claim that there was any suicide pact between himself and his wife, and any thoughts of suicide had clearly passed by the time that, after the killing, he set about disguising what he had done.  
26. It is to be recognised that the applicant pleaded guilty to the charge of murder, and the minimum term is to be reduced to take account of this.    He pleaded guilty, as I have explained, upon re-arraignment, and it is not entirely clear what stage the proceedings had reached when he did so, but my understanding was that the plea was entered before the date of the applicant’s trial.    Further he did so following an admission to the police and after he had directed the police to clothing that he had thrown away.  Judge J commented that the plea was entered in circumstances where “the case against him was overwhelming”.     Mr Gledhill has submitted that this is in part because of the admissions that the applicant made to the police.  I accept this, but the prosecution case was in any event very strong.     Nevertheless, in view of the admissions made by the applicant immediately after he was caught, I do not consider that the credit given for his admissions and his plea should be the less either because he did not plead guilty when first arraigned or because there was strong evidence against him.  
27. There are two other matters in the report of Judge J to the Home Secretary to which I should mention.  First, his reference to “the absence of any real sense of remorse for what he had done” on the part of the applicant: the applicant submits that this is unjustified and contends that his remorse was and is deep and genuine.    He makes reference to a report written by a probation officer who had interviewed him before he pleaded guilty and who writes of him showing “great remorse”.   There is no evidence to the contrary in the papers before me, and therefore (while aware that Judge J might have seen other material) I do not consider that I should reduce the credit that I give the applicant for his plea on the grounds that he was not truly remorseful.    However, it does not seem to me that on any view this is a case in which additional credit should be given for remorse. 
28. Secondly, Judge J expressed the view (partly, I should explain, because of his conclusion that the murder was planned in cold blood) that the applicant was a dangerous man and “If at liberty he would be capable of committing further crime for the same motive”.      No doubt the Parole Board will consider this, but I accept Mr Gledhill’s submission that “the issue of dangerousness is a matter for the Parole Board; the tariff should reflect the seriousness of the offence not the dangerousness of the offender…”

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29. These considerations would lead me to the conclusion that the appropriate minimum term under the provisions of the 2003 Act should be fourteen years, subject to a direction that the period of 203 days should count towards that period.   However, there are two other matters raised by the applicant that I must consider: his submission that his progress in custody is such that his minimum term should be shorter than it otherwise would have been, and the transitional provisions that apply upon an application of this kind under the 2003 Act.
30. The conduct of an applicant in prison may be brought into account when determining the minimum term, but this is done only in rare cases: see Cole v The Secretary of State for the Home Dept, [2003] EWHC (Admin) 1789, where Rose LJ expressed the opinion that “exceptional progress” by a prisoner following conviction should be taken into account in setting a minimum term, “exceptional progress” being progress that stands out from the good progress to be expected of all life prisoners.   
31. I have considered carefully the evidence about the applicant’s behaviour in prison.   If I had been determining the minimum term on the basis that the applicant had committed a financially motivated murder that had been planned over a long period, I would certainly have accepted that his progress from being such a killer had been such that it would properly be regarded as exceptional and have reduced the minimum term to recognise this.   However, the question that I have to consider is whether the applicant’s conduct justifies this given that his term is to be determined on the basis that the murder was a response to the mounting pressures that I have described, and I have found this more difficult to decide.    However, I do consider that the applicant’s application towards educating and rehabilitating himself and, importantly, the period over which his efforts have been sustained are such that there should be a modest reduction in the minimum term to acknowledge them.   On this account I reduce the minimum term to thirteen and a half years. 
32. As I understand Mr Gledhill’s written submissions, he argues that because this is an application to which schedule 22 of the 2003 Act applies, it is necessary to decide whether under the practice adopted by the Secretary of State at the time when the applicant was sentenced the minimum term would have been lower than that indicated by the application of the principles set out in schedule 21, and if it is to determine that the applicant’s minimum term should be such lesser period.
33. This is not expressly required by schedule 22.  In cases such as this, where the applicant has been notified by the Secretary of State of a minimum period, the term ordered on the application must not be greater than the minimum term actually specified: paragraph 3(1)(a).    In cases where no minimum term has been notified by the Secretary of State, the court may not order a term greater than “that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify…”.   There are no transitional provisions requiring that in a case where the Secretary of State has notified a minimum term having received a recommendation based upon the view of the facts different from that adopted by the court considering the application, the court consider what term the Secretary of State would have notified if he had proceeded upon the factual basis adopted by the court and to limit the minimum term ordered accordingly.
34. Mr Gledhill’s argument is not, however, so readily answered.  As I have said, the 2003 Act is intended to bring about compliance with article 6 of the ECHR.  The transitional provisions in the 2003 Act “are intended to ensure that an offender is not made subject to a determination that contravenes Articles 5 and 7.1 of the ECHR.    Under Article 5 every one has the right to liberty and security of person and Article 7.1 prohibits the imposition of a heavier penalty ‘than the one that was applicable at the time that the criminal offence was committed’”: see para 6 of Sullivan, [2004] EWCA Crim 1762.   The 2003 Act must be applied so as to achieve compliance with these provisions of the ECHR. 
35. I therefore must ask myself what period the Secretary of State would have set as the minimum term had he considered the case on the factual basis that I have adopted.     As was explained in Sullivan (cit sup) at para 26, “in a high percentage of cases”, the Secretary of State followed the recommendations of the Lord Chief Justice and the judges who made recommendations as to minimum terms and who themselves were guided by the Lord Chief Justice.   It is therefore relevant to consider the practice adopted at the relevant time by the Lord Chief Justice.
36. In a letter to judges dated 10 February 1997, Lord Bingham CJ referred to the practice adopted by Lord Lane, the Lord Chief Justice in 1990.  He wrote that his (Lord Bingham’s) “current practice [was] to take 14 years as the period actually to be served for the “average”, “normal” or “unexceptional” murder. This is longer that the period (12 years) which Lord Lane took as his norm 10 years ago.   I take this higher norm because I think the level of sentence may in the past, with some reason, have been considered too low…”.     Among the factors that might, in appropriate cases, go to mitigate the normal penalty he identified these: “Spontaneity and lack of premeditation (beyond that necessary to constitute the offence): e.g. a sudden response to family pressure or to prolonged and eventually unsupportable stress”; “and “A plea of guilty, or hard evidence of remorse or contrition”.      I would suppose that Lord Lane too would have considered these considerations to be potentially mitigating factors, and that the Secretary of State would have been guided by judicial recommendations that reflected them. 
37. I do not consider, however, that, even upon a guilty plea, this murder would have led to a minimum term as short as the 12 years that is said to have been the norm for an “unexceptional” murder, or to a minimum term of less than thirteen and a half years.     This was not, as I have emphasised, a murder done in the heat of a quarrel, but involved a significant element of pre-meditation, such that, in my judgment, not only is the applicant unable to put forward spontaneity as a mitigating consideration, but, taken with the nature of the attack and the calculated steps taken by the applicant to cover up what he had done, would have led to the Secretary of State setting a minimum term of no less than thirteen and a half years.
38. I therefore direct that the early release provisions are applicable to the applicant because he has served more than thirteen and a half years.   If it be relevant to calculate when the applicant had served the period of thirteen and a half years, the period of 203 days that the applicant spent in prison before being sentenced should count towards it.

 


Signed:                                                      Dated:       

 


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