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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: MTR/894/2004
Neutral Citation Number: [2005] EWHC 1977 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Monday, 11 July 2005

 

Before :

MR. JUSTICE JACK

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Application by MAZHAR-UL-HAQUE MAZHAR the setting of a minimum term pursuant to Schedule 22, paragraph 3, of the Criminal Justice Act 2003.

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Judgment
As Approved by the Court

Crown Copyright ©

 
Mr. Justice Jack :  
1. This is an application by Mazhar-ul-Haque Mazhar made under paragraph 3 of Schedule 22 of the Criminal Justice Act 2003.  It is that the court order the early release provisions apply to him as soon as he has served the part of the sentence  to be specified in the order.  The affect is that when the specified part of the sentence has been served he is eligible for release on licence if the Parole Board so directs.  It is commonly called ‘the minimum term’.
2. The applicant was sentenced to life imprisonment on 8 December 1998 for the murder of Mazhar Iqbal following his trial and conviction.  The recommendation of the trial judge (Her Honour Ann Goddard Q.C.) was that he should serve 10 years before he might be released on licence.  Lord Bingham C.J. recommended 8-9 years.  The period set by the Secretary of State in a letter dated 13 March 2000 was 9 years.
3. I have received written representations on behalf of the applicant in support of the application.  I have not been asked to hold an oral hearing and do not consider one necessary.
4. In dealing with the application I must have regard to the matters set out in paragraph 4 of Schedule 22.  For present purposes these can be summarised as:
(1) the  seriousness of the offence: paragraph 4(1)(a);
(2) the length of any period in custody prior to sentence: paragraph 4(1)(b);
(3) the length of period notified by the Secretary of State: paragraph 4(1)(c).
Paragraph 4(2) provides that in relation to (1) I must have regard to (a) “the general principles set out in Schedule 21” of the Act and (b) to the recommendations of the trial judge and the Lord Chief Justice as to the minimum term.  Paragraph 3(1)(a) provides that the term specified in my order may not be greater than the term notified by the Secretary of State.
5. Schedule 21 provides three starting points for adults, a whole life order (paragraph 4), 30 years (paragraph 5) and 15 years (paragraph 6).  It provides for the court to take into account aggravating and mitigating factors – paragraphs 8 to 11.  Paragraph 12 shows that section 143(2) – previous convictions, section 143(3) – bail, and section 144 – guilty plea, are applicable in fixing the minimum term.
6. The primary application of Schedule 21 is in the fixing of minimum terms under section 269 of the Act,  Section 269 applies to life sentences fixed by law passed after 18 December 2003.  Section 269(5) provides that in considering the seriousness of the offence the court must have regard to “the general principles set out in Schedule 21”.  That is in the same terms as paragraph 4(2)(a) of Schedule 22.  There cannot therefore be some provisions in Schedule 21 which are general principles and some which are not : in particular the starting points are “general principles”.
7. The conduct of an applicant after sentence is not referred to in Schedule 22 as a matter to be taken into account.  It was, however, something which previously the Secretary of State might take into account in reducing a minimum term which he had set earlier.  I refer to the statement of Mr. Morris, the Head of the Tariff Section in the Lifer Unit, which is quoted in the judgment of Rose L.J., Vice President, in Cole, Rowland and Hawkes [2003] EWHC Admin 1789.  What was required was “exceptional progress”.  Paragraphs 8 , 9 and 10 of the statement read:
“8.   Under the draft new legislation the High Court, when setting minimum terms, will be required to take a number of specified factors into account.  The draft provisions do not require the High Court to take exceptional progress, or exceptional circumstances into account, and the Home Secretary has never intended that the courts should be obliged to do so.  Rather, the draft legislation leaves it open to the courts to take into account exceptional circumstances, including exceptional progress in prison, in appropriate cases.  It is currently proposed that this will be a matter for the courts, although of course the final form of the provisions is a matter for Parliament.

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 9.  Twenty-seven prisoners have had their tariffs reduced on the grounds of exceptional circumstances since the policy was announced in November 1997. Out of these, 23 were reduced on the grounds of exceptional progress in prison (17 by one year and 6 by two years).  Four were reduced on account of other exceptional circumstances (three by one year and one by two years).
10.  The Home Secretary has never issued a definition of what constitutes progress in prison.  Cases are considered on an individual basis and exceptional progress has to stand out clearly from 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.  Examples would be acting as a Listener (helping vulnerable prisoners), helping disabled people use prison facilities, raising money for charities, and helping to deter young people from crime.  Again there  would need to be evidence of sustained involvement in at least two prisons over a lengthy period.”
In the course of his judgment Rose L. J. stated:
“88.  It seems to me to be inconceivable, in human terms, that, if the legislation is enacted, as presently contemplated, in relation to prisoners serving a notified tariff, exceptional progress in prison will not be taken into account on the intended High Court review.
89.  The Secretary of State’s express acceptance of this is to be found, as I have said, in paragraph 8 of Mr Morris’ statement.  It is unnecessary, for the purposes of this judgment, and it would be inappropriate, to explore the various avenues at common law, and under the Convention, where support for legal challenge to any other approach might readily be found.”
It is appropriate to apply the former practice of the Home Secretary to reduce a minimum term by reason of exceptional circumstances, which may include exceptional progress following sentence where it has occurred.
8. The facts relating to the death of Mazhar Iqbal can be stated quite shortly.  The applicant is a devout Muslim.  He has five children.  The youngest, Manzoor, was deaf and unable to speak.  He was married to Asia.  Manzoor Asia lived with the applicant and his wife.  In 1997 the applicant (then aged 63) was told by Asia that she had been raped and blackmailed by two men, Sheik Shahid and Mazhar Iqbal.  The applicant also understood that they had photographs of Asia naked.  The matter was investigated by the police but the CPS advised that no action should be taken.  On 28 September 1997 a meeting took place between Iqbal and the applicant at the applicant’s home.  It was intended to be to clear the air.  Asia swore that Iqbal had raped and blackmailed her.  Iqbal denied it.  The applicant took two knives from the kitchen and without warning stabbed Iqbal.  He admitted he had done so to the police following his arrest and to medical staff at the hospital to which he was taken following his own collapse.  At his trial however he alleged that another person, a close friend who was present in the room, had done the stabbing.
9. The trial judge’s comments on the case were as follows:
“The Defendant had formed an unshakeable, irrational but genuine belief that Iqbal was responsible for rape and blackmail.  He described the photographs as a ‘time bomb’ and could not rest when he believed they might be displayed in the Mosque or to the community.  Immediately before the attack Iqbal had said he would take Asia home as his sister.  In my view this remark which could bear an offensive meaning, ‘provoked’ the Defendant to act as he did.  It was not a premeditated attack.  He is very unlikely to re-offend or be a danger outside this situation.
He is a man of positive good character.  He suffers from asthma and diabetes.  He has a heart condition, for which he had a by-pass operation while awaiting trial.  There was no up to date medical report.”
10. The Applicant had no previous convictions and was in a real sense a man of good character, respected in his community.
11. I do not consider that the case falls within paragraph 4 or 5 of Schedule 21.  The starting point for determining the minimum term is therefore 15 years.
12. None of the aggravating features mentioned in paragraph 10 of Schedule 21 are present.  The mitigating features referred to in paragraph 11 which are present are lack of premeditation and provocation not amounting to a defence of provocation.  The circumstances which led to the stabbing were, as the Lord Chief Justice remarked, very unusual and the mitigation was substantial.  I consider that the nine years notified by the Secretary of State took adequate account of these matters.  It would not be appropriate to reduce the minimum term below the 9 years by reason of matters relating to the offence itself.
13. I do, however consider that there are exceptional circumstances as discussed in paragraph 7 above which require a further reduction.  I refer to the age of the applicant.  He is now 71.  He is also in poor health.  He has conducted himself in an exemplary manner in prison, as a number of reports confirm.  In 2002 he raised £835 for charity.  He stands in for the Imam when the Imam is not available.  His wife is also in poor health and prison visits are difficult.  His son, Manzoor, has recently died as has his wife, leaving their children parentless.  The minimum term should be reduced by 1 year to 8 years to take account of these matters.
14. That period of 8 years must be reduced to take account of the period the applicant spent in custody prior to sentence, which was 14 months and 5 days.  It is therefore ordered that the early release provisions will apply to the applicant when he has served 6 years and 299 days commencing with his sentence on 8 December 1998.


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