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High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003



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Case No: 2004/785/MTR
Neutral Citation Number: [2005] EWHC 543 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday, 22 March 2005

Before :

MR JUSTICE LEVESON


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APPLICATION BY JASVINDER SINGH FOR THE SETTING OF A
MINIMUM TERM PURSUANT TO PARAGRAPH 3,  SCHEDULE 22
OF THE CRIMINAL JUSTICE ACT 2003
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
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Judgment
As Approved by the Court

Crown Copyright ©

 

Mr Justice Leveson :
 
1. On 1st November 1993, in the Crown Court at Manchester before His Honour Judge Rhys Davies QC (as he then was), the Applicant, Jasvinder Singh was convicted of  the murder of his wife, Palvinder Singh who was then 22 years of age.  He was sentenced to imprisonment for life.  Mr Jasvinder Singh was also 22 years of age having been born on 3rd April 1973.
2. Pursuant to section 276 and Schedule 3 of the Criminal Justice Act 2003 (“the 2003 Act”), Mr Jasvinder Singh has applied for the determination of the minimum term following which the early release provisions referred to in Schedule 22 are to apply to him.  This is my determination of that minimum term;  for the benefit of Jasvinder Singh, 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. For the purposes of my decision, I have considered the representations and material submitted to the court on his behalf together with the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2), unreported, 29th July 2004 set out in Archbold, Criminal Pleading Evidence and Practice, 2005 paragraph 5-251. 
4. Paragraph 11 of Schedule 22 of the 2003 Act provides that the application is to be decided without an oral hearing.  In Regina v. Secretary of State for the Home Department ex parte Hammond [2004] EWHC 2753 (Admin), the Divisional Court reviewed this provision and concluded that it did not exclude the possibility of an oral hearing in those cases in which the Judge considered such a hearing was required although it described the prospect as “rare”;  in the event, Jasvinder Singh has waived any right to an oral hearing. 
5. As I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State and neither have I received any representations from members of the family of the deceased.
The Offence and the Notified Tariff
6. The facts of the offence appear from the report of the trial judge in these terms:
“The Defendant lived with his 22 year old wife, Palvinder Singh in Rochdale.  At 10.13 am on 13 December 1994 the Defendant called for an ambulance.  His wife was found to be dead upon a bed.  The bedding, her clothing and the house itself were all found to be absolutely, and suspiciously, clean.  She had died from massive injuries, namely a severe compression injuiry of the chest which broke ribs at the front and the back, caused bleeding into the lungs and two tears in the substance of the heart.  The Pathologist’s opinion was that such injuries could only have been caused by extremely forceful stamping or even jumping upon her.  She also had 89 separate areas of bruising, areas of laceration and five separate blunt force injuries to the head resulting in subdural and subarachnoid haemorrhages.  A neighbour had heard prolonged thumping and screaming noises from the Defendant and the Deceased’s house at about 4.30 am, another at about 6.30 am.  The Defendant initially denied all knowledge of the Deceased’s injuries or how they came to be caused saying that he had found her inert when he woke at about 9.00 am.  At trial, however, he alleged that the Deceased had on this occasion and on earlier occasions hurled herself about under the influence of an evil spirit.  He claimed that he had seen a priest who had advised him to beat his wife and to compress her chest in order to control her.”

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7. The trial judge went on to describe the issues before the Court in these terms:
“The case for the defence was that the Defendant was justified in using some force to his wife because of the advice which he had received and saying “I never intended to harm my wife, I was just trying to help her settle down”, he described the violence he used to her as hitting her with a slipper on her body (where no injuries were in fact found) a few times and pressing with both hands on her chest area when she was on the floor.  I declined to leave to the jury the issue of whether on the Defendant’s avowed belief his use of force upon his wife was not unlawful.  The jury therefore had to consider whether the injuries to the Deceased were self inflicted or inflicted by the Defendant and, if the latter, with what intent.  Manslaughter was left as an alternative.  It was agreed with counsel that there was no evidential basis for leaving the issues of self defence or provocation for their consideration.”
8. The comments of the trial judge on the case generally and on the factors to be taken into account by the Home Secretary when considering release were as follows:
“The victim died as a result of a callous, brutal, prolonged and pitiless assault.  I have rarely, if ever, seen such extensive injuries inflicted by one person upon another without the use of a weapon.  There was evidence, which was not put before the jury, of previous non-accidental injuries sustained by the victim, including five fairly recent and four older rib fractures additional to the fractures which were inflicted at the time of her death.  There was also evidence of sounds of violence from the Defendant and the Deceased’s home.  There is no doubt that this Defendant habitually abused his wife with a very considerable violence.  He is, however, otherwise a man of good character and is only 22 years old.  It was urged upon me that there was little likelihood, if any, of this Defendant re-offending.  I do not agree.  Although the current Psychiatric Report (Dr Campbell, 25 April 1995) is entirely non-committal, such prolonged violence in the course of an emotional relationship must be regarded with concern.”

9. Judge Rhys Davies QC went on to express his view on the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offence in these terms:
“This was a brutal killing of a small, frail, vulnerable woman but no actual weapon was used.  Considering the Defendant’s age and previous character, I would, in the end, recommend a period of 10 years.”
10. The Lord Chief Justice, Lord Taylor (who considered the recommendations in every single mandatory life sentence for murder and thus during his period as Lord Chief Justice was able to ensure a real measure of consistency throughout England and Wales) did not agree.  He said:
“In view of the extreme violence, I would recommend rather longer than the trial judge, despite the offender’s age – 12 years.”
11. The Home Office disclosed the recommendations both of the trial judge and Lord Taylor CJ to Mr Jasvinder Singh and invited representations.  By letter dated 26th March 1996, his solicitors wrote:
“We can only re-iterate the youth of the accused and perhaps more importantly in recent times since the sentence, we visited Jasvinder Singh on several occasions and note for the first time remorse and regret and an acceptance that the advice given by the Spiritual Priest as to how to deal with his wife was inherently wrong.  Perhaps therefore this remorse could be taken into account plus the previous good character and youth when determining the appropriate tariff.”
12. On 14th February 1997, the Home Secretary adopted the view of the Lord Chief Justice and set the tariff at 12 years. 
13. Prior to his sentence, Jasvinder Singh spent 10 months and 24 days on remand in custody. His notified tariff therefore expires on 15 December 2006.  The question is whether, having regard to the terms of the 2003 Act, it is now appropriate to reduce the minimum period with the result that the date from which parole can be considered will fall earlier in time.  It is thus necessary to set out the statutory regime within which I am called upon make this judgment.
The Statutory Regime
14. By virtue of paragraph 3 of Schedule 22 a prisoner serving a mandatory life sentence who has been notified by the Secretary of State 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, may apply to the High Court for a reduction in that period. Paragraph 3(1)(a) provides that the High Court may not set a minimum period which is greater than the notified tariff.  The significance of this minimum period is that it is only thereafter that the Parole Board can direct the prisoner’s release on licence assuming first that the Secretary of State 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) Crime (Sentences) Act 1997.

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15. Paragraph 4 of Schedule 22 provides:
“(1)  In dealing with an application under paragraph 3, the High Court must have regard to –
(a)  the seriousness of the offence, or of the combination of the offence and one or more offences associated with it,

(b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967 (c. 80) as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and

 (c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such a notification has been given.
(2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to –
(a) the general principles set out in Schedule 21, and

(b) any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence.”
16. The determining factor of “seriousness” reflects section 269(3)(a) of the Act and concerns the appropriate measure of punishment in a particular case taking into account “pure retribution, expiation, expression of the moral outrage of society, maintenance of public confidence in the administration of justice, deterrence, the interests of victims, rehabilitation and so on” (see per Lord Bingham of Cornhill in Regina v. Secretary of State for the Home Department ex parte Anderson [2002] UKHL 46 para 7, [2003] 1 AC 837 at page 874A.
17. To identify the general principles set out in Schedule 21, I turn to the starting points set out in paragraphs 4 to 6 in these terms:
“4. (1) If –
(a) 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
(b) the offender was aged 21 or over when he committed the offence,
the appropriate starting point is a whole life order.
(2) Cases that would normally fall within sub-paragraph (1)(a) 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.
5. (1) If –
(a) 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
(b) the offender was aged 18 or over when he committed the offence,
the appropriate starting point, in determining the minimum term, is 30 years.
(2) Cases that (if not falling within paragraph 4(1)) would normally fall within sub-paragraph (1)(a) 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.
6.  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), the appropriate starting point, in determining the minimum term, is 15 years.”
18. Having chosen a starting point, the court is enjoined to take into account any aggravating or mitigating factors to the extent not allowed for in the choice of starting point (paragraph 8) and then, in the light of a detailed consideration of these factors, to determine a minimum term of any length (whatever the starting point) or a whole life order (paragraph 9).  The aggravating and mitigating features set out in paragraphs 10-11:
“10. 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.
11. 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”

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The Appropriate Minimum Period
19. For the purposes of this case, it is sufficient to state that if this case came to be sentenced today, accepting that there was no sadistic element to the infliction of injury upon the Palvinder Singh (and it is not suggested that there was) the starting point pursuant to paragraph 6 would be 15 years.  An aggravating factor to be taken into account, however, is the extent of the physical suffering inflicted upon the deceased prior to death.  On the other hand, the trial judge having made no finding that the intention was to kill as opposed to cause grievous bodily harm, it is at least arguable that a mitigating feature is the fact of the lesser rather than the greater intention.  A further mitigating feature mentioned by the trial judge and the Lord Chief Justice is the age of the offender although it is important to underline that he was no longer a teenager when he committed this offence.  Doing the best that I can, under the present law, in my judgment a tariff of 13-14 years would have been inevitable. 
20. Part of the submission that I have received is directed to the trial judge’s recommendation of 10 years.    Suffice to say that I am far from clear that it is open to me to re-visit the original tariff specified: in addition to the seriousness of the offence (which brings in the recommendations of the trial judge and the Lord Chief Justice), I am required to have regard to the length of the notified minimum term (paragraph 4(1)(c) of Schedule 22).  Further, it is not without significance that in those cases in which a minimum period had not been set by the Secretary of State, paragraph 8 requires the court not to make an order specifying a part of the sentence “which in the opinion of the court is greater than that which, under the practice followed by the Secretary of State before December 2002, [he] would have been likely to notify”.  That demands an assessment of the likely period that would have been determined under the old law:  in this case, I do not need to make that assessment for I know the period which was specified.
21. I accept that this places a maximum limit on the period and does not necessarily affect the ability of the court to determine a lesser period but to do so requires a justifiable basis for differing from the views of the judges originally charged with advising on this topic and the Secretary of State who had responsibility for fixing it.  The view of the Lord Chief Justice is of particular importance given the value of consistency to which I have referred and, in this case, the Secretary of State did no more than adopt the view of Lord Taylor CJ.  This assessment also reflected the practice (albeit enunciated by Lord Bingham CJ on 10th February 1997 only four days before the Secretary of State notified his decision in this case) that 14 years was to be taken as the period to be served for the ‘average’ or ‘unexceptional’ murder with youth being a mitigating factor.
22. I can find no basis for differing from the views to which I have referred.  In particular, bearing in mind the observation of the very experienced trial judge (to the effect that he had rarely seen injuries of such severity inflicted without the use of a weapon), I agree entirely with Lord Taylor’s observation regarding the use of extreme violence and endorse his view that the appropriate period was 12 years.  As is clear from the foregoing, if the offence were committed today, a higher tariff would result.
Subsequent Progress
23. It is also contended on behalf of the applicant that “his excellent progress in prison custody” justifies a reduction in the minimum term.  The 2003 Act does not refer to this as a factor to be taken into account, although that is not determinative.  In Regina v. Secretary of State for the Home Department ex parte Cole [2003] EWHC Admin 1789, prior to the passing of the Act, Rose LJ considered (at paragraph 88) that if the legislation were to be enacted as then contemplated, it was “inconceivable, in human terms” that exceptional progress in prison would not be taken into account.
24. In order for that progress to be taken into account, however, the progress has to be exceptional.  Rose LJ referred to the evidence before the court of the then policy of the Home Secretary expressed in these terms: 
“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".
25. Accepting this approach, as to exceptional circumstances, Rose LJ said (at paragraph 5):
“Such exceptional circumstances might include, for example, a prisoner whose tariff had not long to run who displays exceptional bravery in preventing the death or serious injury of a member of staff or fellow prisoner, or in preventing the spread of fire which would have otherwise caused extensive damage or loss of life.”
In relation to the case which he was then before the court, Rose LJ did not consider that a prisoner who was part of the Listeners’ Scheme, had done considerable work on his offending behaviour, showed significant remorse and who was working four days a week outside the open prison in which he was detained and one day on an Open University degree course in prison had shown himself to be sufficiently exceptional to require his progress to be taken into account when determining his tariff.
26. Against that analysis of the circumstances in which it is appropriate to make a reduction in the minimum term, I turn to Jasvinder Singh’s progress in prison.   I have read the material put before me and note that he accepts full responisiblity for his wife’s death and expresses complete remorse in that regard.  Further, it is clear from the parole notification of 16th January 2004 that the clear evidence that he was worked hard to address the risk factors and improve his work skills has resulted in a recognition that he was then ready to be tested in open conditions.  This, however, is the good progress that it is to be hoped (even if not expected) that all mandatory life prisoners achieve and will certainly stand him in good stead when his release comes to be considered in due course by the Parole Board.  However, no exceptional feature of the type visualised by the Home Office or by Rose LJ is suggested and I find none.
Conclusion
27. In the circumstances, I am of the clear view that the appropriate minimum period which Jasvinder Singh must serve before the early release provisions are to apply to him is 12 years.  From that period is to be deducted the period of remand in custody, namely 10 months 24 days.  The minimum period determined as required by Schedule 22 of the 2003 Act is, therefore, 11 years, 1 month and 6 days.  For the avoidance of doubt, the minimum period is unaltered and expires on 15 December 2006.

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