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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 1825 (QB)

Case No: 2004/280/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Manchester Crown Court,
Crown Square, Manchester, M3 3FL

Date: 26 July 2006

Before :

THE HONOURABLE MR JUSTICE BEATSON
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 R 
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 STEPHEN ANDREWS 

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Neither party was represented


Hearing dates: 3 April - 13 May 2002
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Approved Judgment


 
Mr Justice Beatson :
1. On 19 June 2002 at the Central Criminal Court Stephen Andrews (hereafter “the applicant”), then aged 22, was convicted by a majority of eleven to one 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 9 years.  On 6 July 2002 the Lord Chief Justice stated he agreed with the trial judge’s recommendation. 
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 before me the pre-sentence report that was before the trial judge and the advice dated 14 April 2003 of counsel for the applicant as to what representations to make on the minimum period.  I have considered 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 wished to make a statement.  There is before me a witness statement by the mother of the deceased which appears to be the victim impact statement submitted to the trail court.  I have considered this.  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 [2004] EWHC 2753 (Admin)) in which an oral hearing is required.
The Background
6. The circumstances of the offence are described by the trial judge, the Common Sergeant, HH Judge Peter Beaumont QC, as follows:
“In the early hours of the morning on 26 May 2001, Christopher Donovan was walking along the Kingston Road, Ewell in Surrey with his brother Phillip and a friend Richard Keats.  The group was in good spirits and singing.  Walking along the Kingston Road in the opposite direction was a group of 9 young people who had all come from a party nearby.  Andrews, at 20 years of aged was the oldest of this group, which included Ryan Seymour and Jack Hall, 16 and 15 respectively.  As the Donovans and Keats passed through this group they were attacked.  Richard Keats was sent flying by a push.  Phillip and Christopher Donovan surrounded and beaten up.  Each was knocked to the ground and then kicked - Phillip on the pavement: Christopher in the roadway.  The prosecution asserted that Andrews, Seymour and Hall were all involved in the attack on Christopher Donovan who, while helpless in the road, was repeatedly kicked and stamped on.  Of these three, the evidence indicated that Seymour bore the major responsibility for the actual infliction of the injuries that left Donovan senseless and lying motionless in the carriageway, hall the least.  The defendants' group ran away leaving Christopher Donovan lying in the road.  At least one car swerved to avoid him but the driver of another mistook his body for a bundle of rags and drove over him dragging him for some distance and trapping him under the car.  When the emergency services extricated him, Christopher Donovan was unconscious but alive.  He was taken to Epsom General Hospital where a laparotomy was performed with a view to identifying the extent of the internal injuries.  During the course of this operation he suffered a series of cardiac arrests, the last of which proved fatal.  The post-mortem examination distinguished injuries caused by the assault and those sustained in the impact and subsequent dragging by the car.  The former included severe head injury, which, even if survivable, left him unconscious in the path of approaching traffic.”

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:-
“The court adjourned sentence in order to obtain a pre-sentence report.  In evaluating the risk of harm to the public and the likelihood of re-offending, the author drew the court's attention to Andrews' lack of previous convictions, his good work record and close family support.  He was impressed by the apparent sincerity of his remorse and the commendably positive approach he was showing to his first experience of custody and to serving it at barely 21 in the adult prison system.”

8. It was in view of these comments that the Lord Chief Justice agreed with the recommendation of 9 years for the applicant.
The Statutory Regime
9. 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. 
10. 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."
11. 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.

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12. 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.”

13. 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.”
14. 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).
15. 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.”
16. 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”

17. 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
18. 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
19. The application does not submit that any other period is more appropriate in the circumstances.  The advice to which I have referred states that representations do not need to be made on his behalf because it is not open to the court to increase the minimum period “set by the trial judge and approved by the Lord Chief Justice” because to do so would offend Articles 5 and 7(1) of the European Convention of Human Rights.  It is not in fact correct that it is not open to the court to increase the minimum period.  In cases such as this the period was not “set” by either the trial judge or the Lord Chief Justice.  They made recommendations to the Home Secretary.  Schedule 7 to the 2003 Act only requires the High Court to “have regard” to those recommendations. Moreover, the statutory ceiling in paragraph 10 of schedule 22 to the 2003 Act concerns the minimum period which the Home Secretary would have set prior to December 2002.  In Sullivan [2004] EWCA Crim 1762 it is stated by the Court of Appeal that the best guides as that practice are the practice directions issued by Lord Woolf CJ and his predecessor Lord Bingham CJ, and that, in the most serious cases, the Home Secretary tended to select a higher figure than that indicated by the judiciary: Sullivan at paragraphs 26-27.  This, for the reasons given in the next two paragraphs of this judgment, is not such a case.  Nevertheless the basis upon which the advice was given and representations may not have been made is incorrect.
The decision in this case
20. The sole question for me in determining the applicant’s minimum term therefore is whether there is a justifiable basis for differing from the recommendations 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.  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.
21. None of the factors listed in the guidance as likely to call for a sentence more severe than the norm are present in this case.  There are, moreover, a number of mitigating factors.  First, the applicant's age, he was 21 at the time the offence was committed.  Secondly, his previous good record.  Thirdly, the sincerity of the remorse he showed and his consciousness of the impact of what had occurred on the deceased's family. 
22. In the circumstances, I can find no basis for differing from the recommendations of the trial judge and the Lord Chief Justice.  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 9 years.  From that period is to be deducted the period of remand in custody, namely 1 month and 5 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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