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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: 2005/12/MTR
Neutral Citation No [2006] EWHC 466 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
AStrand, London, WC2A 2LL

Date: 22 March 2006

 

Before :

MR. JUSTICE JACK

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Application by STEPHEN CHATTERTON for 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
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Judgment
As Approved by the Court

Crown copyright©

 

 
Mr. Justice Jack :
 
1. This is an application by Stephen Chatterton 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 31 July 1996 for the murder of Mehmet Korkmaz following his trial with his co-defendant, Kevin Morgan, who was also convicted.  A third defendant, Francis Quinn, was acquitted.  The recommendation of the trial judge (Mrs Justice Steel) was that he should serve 14 years before he might be released on licence.  The recommendation of the Lord Chief Justice was 16 years.  The period set by the Secretary of State in a letter dated 17 December 1996 was 15 years.
3. I have received written representations on behalf of the applicant in support of the application.  I have been asked to hold an oral hearing but do not consider one necessary.  It was held in Hammond v Secretary of State for the Home Department [2005] UKHL 69 that the court had a discretion to an oral hearing to be exercised only when it was necessary to meet the requirement of fairness.  I am here asked to hold an oral hearing if I am minded to set the minimum term at higher than 12 years.  No particular reasons are given.  There is nothing to suggest that here fairness requires an oral hearing.
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.
 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. When a judge passes sentence following a trial it is for him or her to determine the circumstances relating to the offence in so far as they have not been decided by the jury’s verdict.  The judge does so on the basis of the evidence that has been heard and the criminal standard of proof applies.  In considering what the minimum term should be pursuant to paragraph 3 of Schedule 22 I should accept the trial judge’s conclusions as to those circumstances.  She heard the evidence: I did not.  Her findings form the basis for sentence.
9. The facts set out by the trial judge in her report were as follows :
“Chatterton had spent the later part of the evening of 14 August 1995 in a dance hall and drank some 7 cans and 5 pints of lager between 6.30pm and 2,30am.  At closing time he was heard to say he hated “pakis” and on leaving the hall he met up with two companions, Morgan and another (acquitted).  Chatterton indicated the two Turks and said they were cheeky black bastards with our white women and he was going to smash their heads in.  He was said to be hyped up and made his way across the road, where he stalked and attacked Mehmet Yavuz by punching and kicking him.  Morgan ran over and joined in the attack and Yavuz suffered facial injuries and a fractured cheek bone.  The murder victim, Korkmaz, was knocked to the ground, kicked by both, and witnesses spoke of his head being stamped on.  There were conflicts as to who did what but clearly there was a joint enterprise and the pathologist found three kick injuries to the head of the deceased, one of which was fatal.
According  to Morgan, Chatterton made further racist remarks as they were leaving the scene in a taxi.  When asked “What was that for?” he said “They shouldn’t be copping for our white women”.  Chatterton alleged that Morgan had said, on seeing an ambulance drive past, “That’s probably for that Paki bastard”.
Chatterton destroyed his shoes and clothing.  Each defendant blamed the other and showed callous indifference to the incident and its consequences.  Neither defendant had any relevant previous convictions to indicate a predisposition to violence and it is difficult to assess the degree of dangerousness or risk of re-offending.”
The judge commented that the fact that the applicant’s mother had attended court with a Chinese man could have some relevance to his offence.  That is now shown not to be so.
10. In her description of the offence the trial judge stated :
“Each equally involved in vicious, unprovoked, racist attack upon two Turks.  Chatterton started the violence and was joined by Morgan.  Together they murdered Mehmet Korkmaz by kicking him and stamping on his head.”
11. In recommending 16 years the Lord Chief Justice stated that it seemed to him that “racially-motivated violence of this kind calls for a more than ordinarily severe punitive term”.
12. The term recommended in respect of Morgan by the trial judge was 14 years, and by the Lord Chief Justice 16 years, and that originally notified by the Secretary of State was 15 years.  So no distinction was then drawn between Morgan and the applicant.  By letter of 16 May 2002 the Secretary of State notified Morgan that his minimum term was set afresh at 14 years.  That followed further representations made on behalf of Morgan together with a Prison Service psychologist’s report to the effect that Morgan had not been racially motivated in his part in the attack on Mr. Korkmaz.
13. The applicant was aged 20 when the killing occurred.  He had previously been dealt with by the courts on 4 occasions for comparatively minor offences.  In 1994 he was ordered to be detained in a Young Offenders Institution for 4 months for a second offence of driving while disqualified.  He had no convictions for violence.
14. On the basis that the attack on Mr Korkmaz was racially aggravated the case falls within paragraph 5 of Schedule 21, which suggests a starting point of 30 years.  It is submitted on behalf of the applicant that there was no racial motivation on the applicant’s part for the attack.  There was clear evidence to establish that, and I have quoted the trial judge’s conclusion.  Morgan was in a different position.
15. I should proceed on the basis that the applicant did not have an intention to kill.  This is an important mitigating factor.  The applicant’s age is also some mitigation.
16. Paragraph 3(1)(a) of Schedule 22 requires that the minimum term ordered by me shall not be longer than the term notified by the Secretary of State, namely 15 years.  I do not consider that the factors which I have referred to relating to the offence itself justify a lower term.
17. The applicant has done well while he has been in custody.  However I do not consider that this exceeds the good progress in prison to be expected of life prisoners.  I should not reduce the minimum term on this ground.
18. The period of 15 years must be reduce to take account of the period which the applicant spent in custody prior to sentence, namely 11 months and 10 days.  It is therefore ordered that the early release provisions will apply to the applicant when he has served 14 years and 20 days commencing with his sentence on 31 July 1996.

 


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