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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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Case No: 2004/409/MTS
Neutral Citation Number: [2006] EWHC 139 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 22 February 2006

Before :

LORD JUSTICE RICHARDS
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Between :

 Regina  
 - and - 
 Kirk Steven Drummond 

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(Transcript of the Handed Down Judgment of
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Judgment
As Approved by the Court

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Lord Justice Richards :
 
1. On 4 February 2003, after a trial before myself (as a High Court Judge) and a jury at Chester Crown Court, Kirk Drummond was found guilty of murder.  He was sentenced to life imprisonment.  His case has now been referred to the court, pursuant to paragraph 6 of schedule 22 to the Criminal Justice Act 2003, for the determination of his minimum term under section 269 of the 2003 Act.
2. There were three co-defendants.  Michael Parker was found not guilty of murder but guilty of manslaughter and was sentenced to 7 years’ imprisonment (a sentence subsequently increased by the Court of Appeal to 8½ years’ imprisonment on an Attorney General’s reference:  see [2003] EWCA Crim 1994).  Andrew Denny was found not guilty.  David Lightfoot was charged only with an offence of assisting an offender, to which he pleaded guilty before trial.
The  circumstances of the offence
3. The following account is taken from my report to the Home Secretary following the trial.
4. The prosecution case was that Drummond, Parker and Denny were involved in the supply of drugs, including cocaine, and that the attack on the victim, Jason Griffin, was by way of punishment for crossing them.   Some 3-4 weeks before the murder a stash of their drugs had gone missing.  On the night of the murder it was reported to them that Griffin, a drug addict known to them, had stolen the stash.  It was that which motivated the violence described below.  I was satisfied at trial that the essential features of that case were supported by the evidence.  Each of the defendants gave evidence blaming the others, but the jury's acquittal of Denny strongly suggests that the jury accepted much of his account, which was credible. He described Parker as the organiser and boss, and Drummond and himself as the front men and grafters.  He said that he and Parker had at one time stopped supplying cocaine but had started again at Drummond's suggestion when Drummond was released after serving a custodial sentence for the supply of class A drugs.
5. On the night of 30-31 March 2002 the defendants had been drinking together and with others at a pub and then a club.  The information that Griffin had stolen the stash of drugs was given to them as they were leaving the club to go back to Parker's flat. Denny travelled separately from the other two and arrived outside first.  While waiting for the others he received a phone call from Griffin to say that Griffin was coming round to Denny's flat, which was in the same block as Parker's flat.  When Denny informed Parker of this, Parker told Denny to go back to his flat and to give Parker a "missed call" when Griffin arrived (i.e. to give him a short unanswered phone call as a signal).  Denny went to his flat; Parker and Drummond went to Parker's flat.
6. When Griffin arrived, Denny gave Parker the missed call.  Drummond and Parker rushed round to Denny's flat.  Drummond immediately punched Griffin once on the face, causing him to stumble.  Griffin then tried to make a run for it but was prevented from doing so by Parker.  Griffin fell to the ground and while on the ground and unable to defend himself he was kicked and punched repeatedly and with force by Drummond and Parker. Although Denny said in evidence that Parker wielded a metal bar and that Drummond fetched a kitchen knife which was taken off him by Parker, that feature of Denny's evidence could not safely be relied on.  But the kicking and punching were also attested to by an independent witness, Andrew Jones, who said that the incident lasted 2-3 minutes or more and described himself as sickened and shocked by what he saw.
7. Drummond then dragged Griffin by the legs out of the flat and across an external courtyard to a rear gate.  He fetched a car and put Griffin "like a rag doll" into the boot of the car (i.e. into the back area of a hatchback).  At this stage Griffin was unconscious and his face was bleeding. 
8. Drummond drove the car to the front of the block of flats, where Denny got in as passenger, and then drove off.  Parker and others got into Parker's car and followed. Drummond drove several miles to a remote jetty by the Manchester Ship Canal. During the journey, Denny punched Griffin's unconscious or semi-conscious body several times, but the jury would appear to have accepted Denny's evidence that he did this only because Drummond told him to and threatened to hit him if he failed to comply. Denny's evidence that during the journey Drummond shouted at Griffin a couple of times words to the effect of "You think I'm a knobhead?  I'm going to kill you" was also credible.
9. At the jetty Drummond lifted Griffin out of the boot and dropped him onto the ground. Denny's evidence, which was credible on this point too, was that Drummond then kicked Griffin several times on the head and body and that Parker also punched him two or three times.  An independent witness, Mark Jacobs, viewed the incident over CCTV and witnessed what he thought were 3 or 4 people kicking the body on the ground and he described in particular a person who, by reference to the car from which he got out and his position in that car, was Drummond.  Although that evidence was unreliable in its detail, it supported the case that Griffin was assaulted further at the jetty and that Drummond participated in that further assault.
10. The body was thrown back in the boot.  According to Denny, Drummond slammed the boot down on Griffin's legs before they were fully in the boot: the impact of the boot mechanism would explain an otherwise unexplained puncture wound to the leg.  After the boot had been closed everyone got back into the cars and drove off.  They stopped again outside a pub in a nearby village. Drummond dragged Griffin out of the boot and dumped him in the road.  The defendants drove off, leaving the body there.  Thereafter they took various steps to try to conceal evidence: the car driven by Drummond, which was a stolen car with stolen number plates, was burnt out, Denny's flat was cleaned and the other car, which belonged to Parker, was also cleaned.  Meanwhile Griffin's body was spotted in the road by the driver of a passing car, who stopped and summoned the police and ambulance. Griffin was unconscious and very seriously injured.  He died later that evening in hospital.
11. The pathologist found, amongst other injuries to Griffin's body, some 31 injuries to the head, comprising bruises, abrasions and lacerations.  Their distribution suggested multiple blows to the head.  He estimated there were at least 8 blows and possibly more. Internal examination revealed a hair line fracture to the front right side of the skull, in an area corresponding to some of the serious external injuries, and an extensive subdural haemorrhage.  There were also multiple abrasions to the upper buttocks and middle lower back consistent with being caused by gravel imprints and indicating forcible contact between those areas and the ground, which also supported the view that a significant part of the assault had occurred with Griffin lying down. The cause of death was given as a subdural haemorrhage resulting from blunt force trauma to the head.
The trial
12. The main issues for the jury were:  (i) whether there was a plan to assault Griffin as a punishment for stealing the stash of drugs, (ii) whether the fatal injury was caused by an assault or assaults committed in pursuance of the plan, (iii) in the case of each defendant, whether he was party to the plan and remained a party throughout the period of the assaults, and (iv) whether he participated with the intention to kill or to cause really serious injury (or in the case of Denny, who was alleged in the alternative to have been a secondary party, whether he himself had that intention or realised that the others might assault Griffin with that intention).
13. The jury must have found that there was a plan and that the fatal injury was caused by an assault or assaults committed in pursuance of the plan. 

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14. In the case of Drummond, the jury clearly found that he was a party to the plan throughout and that he participated with the intention requisite for murder. 
15. In the case of Parker, the jury again must have found that he was a party to the plan throughout (rejecting an argument that, if he was party to start with, he withdrew from the plan after the events in the flat and before the further assault at the jetty). The finding that he was not guilty of murder but guilty of manslaughter must have been based on the view that, although in participating he intended to cause some harm, he did not intend or may not have intended to kill or to cause really serious harm.  He may be considered fortunate to have been given the benefit of the doubt on that point.  The different verdicts can also be seen, however, to reflect a wider perception, supported by the evidence, as to the difference in the respective roles of Drummond and Parker, in that Drummond lost his self-control in a way that none of the others did and was at the forefront of the violence throughout.
16. In the case of Denny the jury must have found that he was not or may not have been party to the plan or that he did not have or may not have had the intention or state of mind requisite for murder.  His involvement in the actual violence was limited to the punching in the car under threats from Drummond and he was a far weaker character than Drummond or Parker. In his case, for reasons that need not be explained, manslaughter was not an available option for the jury.
Legislative framework and procedural matters
17. In determining the minimum period to be served by Drummond, I have directed myself by reference to the provisions of schedule 22 to the 2003 Act, in particular paragraphs 6-8, and to the provisions of section 269, including the need to have regard to the principles set out in schedule 21 in considering the seriousness of the offence.
18. An important feature of the relevant provisions is that the minimum term specified by me must not be greater than that which, under the practice followed before December 2002, the Home Secretary would have been likely to notify as the minimum period to be served before the defendant’s release on licence.  Account must also be taken of any period served in custody on remand before sentence was passed.
19. The material I have considered includes counsel’s plea in mitigation at the time of sentencing and a manuscript letter from the defendant (date-stamped 13 May 2004) in which he accepts responsibility for his actions and expresses remorse.  There has been no request for a hearing and I am satisfied that a hearing is not necessary in the interests of fairness (see R (Hammond) v Secretary of State for the Home Office [2005] UKHL 69).
Discussion and decision
20. In determining the minimum term, the starting point under schedule 21 to the 2003 Act would be 15 years.  The starting point under the regime operating at the relevant time (see paragraph 8 of schedule 22 and paragraphs IV.49.14-IV.49.34 of the Consolidated Criminal Practice Direction, as amended) is open to argument.  At the time of my report to the Home Secretary I took the normal starting point of 12 years set out in the Practice Statement of 31 May 2002 (see [2002] 2 Cr App R 18), as now incorporated in paragraphs IV.49.23-IV.49.33 of the Consolidated Criminal Practice Direction:  the Practice Statement was expressed to apply to sentences or recommendations made after 31 May 2002.  On reflection, having regard to the aggravating factors referred to below and the observations of the Court of Appeal in the case of Parker (see [2003] EWCA Crim 1994, in particular at paras 15-16), I think that it would be more appropriate to take the higher starting point of 15-16 years under that Practice Statement.  But a further complicating factor is that where, as here, the murder was committed before 31 May 2002, paragraph IV.49.17 states that the best guide to the Secretary of State’s practice is the guidance given previously to judges by Lord Bingham, under which the starting point would be 14 years. 
21. Ultimately I do not think that it matters which starting point is taken, so long as the relevant aggravating and mitigating factors are taken fully into account one way or the other.
22. There are the following aggravating factors:
i) The fact that the attack was by way of deliberate punishment for crossing the defendants in their drugs business. 
ii) The sustained, repeated and brutal nature of the attack, involving the repeated kicking of a defenceless victim while he was on the ground and further serious maltreatment of him (dragging him by the legs along the ground, putting him in the boot of a car, dropping him on the ground, etc.), and resulting in extensive injuries.  To that may be added the way the body was left lying in the road at the end of the incident.
23. There are the following mitigating factors:
i) Although there was a sufficient "plan" for the purposes of a joint enterprise, in particular the arrangement concerning the missed call, only a short time elapsed between the formation of that plan and the commencement of the assaults.  This was not a case of careful pre-planning.  It had an element of spontaneity to it, even though the Court of Appeal, in the case of Parker, described the extent of premeditation as significant.
ii) Drummond was heavily under the influence of alcohol and possibly drugs. Other witnesses testified that he was drunk.  His own evidence was that he had consumed 20 pints or more of Stella in the course of the day preceding the attack and had also taken cocaine.  His state of intoxication was not sufficient to negative the intent to kill or cause really serious harm.  It may, however, help to explain the loss  of self-control.
iii) At 21 years of age, he was still relatively young at the time of the offence.
iv) His background does not include any violent offending.  He was sentenced to 3½ years' detention in a Young Offenders Institution on 7 August 2000 for possession of class A drugs with intent to supply, plus driving offences.  He had not otherwise been before the courts before. There was evidence that he had a "reputation" as a hard man, but no particulars to substantiate it or to show that he had engaged previously in violence.
v) Although he maintained a not guilty plea throughout, in his evidence he admitted some participation in the violence; and his counsel's closing submissions on his behalf invited the jury to return a verdict of not guilty of murder but guilty of manslaughter.  In that way Drummond accepted, albeit at a late stage, some responsibility for the killing.  I have referred above to his subsequent acceptance of responsibility and expression of remorse.
24. In my report to the Home Secretary I recommended a minimum term of 14 years.  The Lord Chief Justice did not make any recommendation in this case.
25. On reflection I have come to the conclusion that the minimum term recommended by me at the time was somewhat on the low side and that a more appropriate figure in all the circumstances would have been one of 15 years.  Nor do I consider that the Home Secretary would have been likely to notify a lower minimum term than that under the practice followed by him before December 2002.
26. Accordingly, I have decided to make an order under section 269(2) of the 2003 Act that the early release provisions are to apply to the defendant as soon as he has served 15 years of his sentence, less the period of 9 months 15 days spent in custody on remand. 

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