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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: [2007] EWHC 2928 (QB)

Case No: 2006/104/MTR

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/12/2007


Before :








Mr Justice Grigson: 
1. By an application to this Court made pursuant to para. 3 of Schedule 22 Criminal Justice Act 2003 Malcolm Colin Smith seeks an order that the early release provisions are to apply to him as soon as he has served a period of 12 years and 312 days  imprisonment.

2. On the 29th July 1993 the Applicant was convicted of the murder of Jayne Denise Harvell.  He was sentenced to imprisonment for life.  The minimum term set by the trial judge was 20 years.  The Lord Chief Justice endorsed that recommendation.  The minimum term notified to the Applicant by the Secretary of State for the Home Department was 20 years.  The period spent in custody on remand was 13 months and 22 days.

3. The approach to be adopted by this Court is set out in:

Caines [2006] EWCA Crim. 2915.

and can be summarised as follows:

a. The decision is a sentencing decision.

b. Although the Court is required by para. 4(1)c of Sched. 22 to have regard to the minimum term as notified to the Applicant by the Secretary of State for the Home Department the only relevance of that term is that the minimum term fixed by this Court must be no longer.

c. By virtue of para. 4(2)a of Sched. 22 this Court must have regard to the views of the trial judge and of the Lord Chief Justice as to the period to be served to meet the requirements of retribution and general deterrence.

d. This Court may take into account exceptional progress made by the Applicant after sentence, but only where the risk assessment is favourable.  In the event that both factors are present, the reduction is likely to be modest.

e. By virtue of para. 4(2)a of Sched. 22 this Court must have regard to the general principles set out in Sched. 21 of the Criminal Justice Act 2003 and to the starting points set out in paras. 4 – 7 of Sched. 21.

4. The starting point of a minimum life term is to be decided by the seriousness of the offender’s conduct.

5. There are three categories of seriousness:

(a) Where the offender is over 21 and the seriousness of his conduct is exceptionally high, the starting point is a whole life order.

(b) Where the offender is over 18 and the seriousness is particularly high the starting point is 30 years.

(c) Where the offender is over 18 and the case does not come within (a) or (b) above, the starting point is 15 years.

6. The seriousness of the offender’s conduct is to be determined by the criteria set out in Sched. 21 para. 4(2) [Exceptionally high cases] and para. 5(2) [Particularly high cases].  Conduct which does not qualify for either comes into the third category of seriousness.

7. Having determined the starting point, the Court may either increase the minimum term or reduce the minimum term depending upon whether there are aggravating or mitigating features (para. 8 Sched 21).  Some of these features are listed at paras. 10 and 11 of Sched. 21.

8. Once the minimum term has been fixed, the Court must deduct from it time spent in custody on remand in relation to the index offence.

9. The Applicant

The Applicant was born on 2nd May 1952.  He has numerous convictions: of particular relevance are:

1979 - Burglary and indecent assault on a girl aged 13.

1981 -  unlawful wounding (x2)
possession of an imitation firearm
assault occasioning actual bodily harm (x2).

1987 - assault occasioning actual bodily harm (x2)
 common assault (x2)
 threat to kill

On 11th December 1991 the Applicant was sentenced to a total of 18 months
imprisonment for one offence of robbery and one offence of false imprisonment.  He
had tied up and gagged the victim.  This was before the jury at his trial for murder as
similar fact evidence.

10. Facts of the Offence.
On 26th May 1992 the Applicant was granted home leave.  In breach of his condition of residence he went to Westbourne, Bournemouth where he met the deceased.  He knew of her because she had been the girlfriend of another prisoner.  She allowed him to stay at her flat on the night of 31st May 1992.  She spent the night with her current boyfriend.  She was last seen alive by anyone other than the Applicant at about 8am on the 1st June 1992.

At 3.30pm on the 1st June 1992 she was found on her bed in her flat, dead.  She was   naked from the waist down.  Her hands were tied very tightly behind her back.  Her ankles were tied together and to her neck.  A cable had been tied tightly around her neck.  A pillow case had been put over her head and tied in position.  She had been beaten about the head.  One of the Applicant’s socks had been tied into her mouth.  Recent sexual intercourse had taken place.  The Applicant’s semen was found in her vagina.  She had drowned in her own blood.  The Prosecution case was that the Applicant had tied her up, raped her and then beaten her.  The Applicant claimed he had left her alive and well on the morning of the 1st June 1992.

11. This murder involved sexual and sadistic conduct.  It falls into the particularly high category of seriousness.  Under Sched. 21 the starting point would be 30 years.

12. Representations by or on behalf of the Applicant.

(a) Lack of premeditation

(b) “The balance between the aggravating and mitigating factors is in favour of reducing the starting point to 15 – 16 years.  In the light of the above the appropriate starting point would be the lower end of the scale i.e. 15 years.

(c) Good conduct in Prison

  I see no evidence to support the suggestion of lack of premeditation. If anything, the     evidence suggests that the Applicant targeted his victim.

There are no mitigating factors.  There are substantial aggravating factors, not least   the Applicant’s history of violent and sexual offending.

His progress in prison has not been outstanding.

13. Application is made for an oral hearing.  There are no circumstances, exceptional or otherwise which would justify an oral hearing.

14. Conclusion:

I can see no justification for reducing the minimum term.  I cannot increase it.  I fix the minimum term at 20 years less the 13 months and 22 days spent in custody on remand.


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