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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: [2006] EWHC 3011 (QB)

Case No: 2004/460/MTS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/12/2006

Before :

The Honourable Mr. Justice McCOMBE
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Between :

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Judgment Approved by the court
For handing down
(subject to editorial corrections)

Mr Justice McCombe:
1. On 15 November 2002 at the Central Criminal Court, before His Honour Judge Stephens and a jury, Michael Richards (“the Offender”) was convicted by a majority verdict (10 – 2) of murder.  For that offence he was sentenced to life imprisonment.  He was convicted on the same occasion of two offences of wounding with intent to cause grievous bodily harm (contrary to Section 18 of the Offences against the Person Act 1861) and two offences of assault occasioning actual bodily harm (contrary to section 47 of the same Act).  For the Section 18 offences he received concurrent sentences of 12 years imprisonment on each and for the Section 47 offences he was sentenced to further concurrent sentences of 4 years imprisonment on each.  Those determinate sentences were, of course ordered to be served concurrently with the life sentence.
2. The Offender’s case has now been referred to this court for the purpose of making an order under section 269 of the Criminal Justice Act 2003 (“the ACT”) that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (“the early release provisions”) shall apply to him as soon as he has served that part of his life sentence a specified in the order.  In other words, the court has to set the minimum term that the offender is to serve in custody before the question of his release may be considered by the Parole Board.
3. On 21 November 2002 the learned trial judge made his report to the Home Secretary (“the report”), in accordance with the practice then in force, as to the minimum period of years to be served in custody by the Offender in order to meet the requirements of retribution and deterrence.  The learned judge recommended that the appropriate period was 15 years.  In view of the pending changes to the law in this field, the Lord Chief Justice did not provide comments on that recommendation and no minimum term was notified by the Home Secretary.
4. In the Report the learned judge described the circumstances of the murder offence in the following terms:
“The defendant gained entry to the occupied by one Watson and friends.  He opened fire with a handgun, one of two firearms, which he wielded.  He killed a defenceless man who was waking up on a bed in the living-room.  He fired at Watson and another man, causing gunshot wounds to both.  Two other men jumped out of the window (on the second floor) injuring themselves.  The defendant denied shooting anyone.  His evidence was that a another man came in behind him and id the shooting.
The prosecution could not provide any clear evidence as to motive.  There was a strong suspicion that the attack was connected with drugs”.
5. In making his recommendation the learned judge wrote:
“The offence was planned and involved the use of a firearm with which he armed himself in advance.  It had the appearance of a “professional” killing in the circumstances”
6. In passing sentence on 15 November 2002 Judge Stephens said,
“Michael Richards, I do not suppose anyone will ever know the truth about what lay behind the terrible things you did in that small room in Reighton Road on the 24th November last year.  The fact is that you shot dead a totally innocent young man as he lay defenceless on a bed half asleep.  You shot two other men who by the grace of God were not killed and you caused two men to jump from a second floor window injuring themselves in the process.  Again, they were very lucky that they did not suffer more grievous injury even than that which they did.
 You have not shown a hint of remorse in my judgment; putting forward a cock and bull story in an attempt to hoodwink the jury and in that you failed.  The use of guns to kill and cause terror in London has reached totally unacceptable levels.”
7. In considering this matter I have had before me a letter from the Offender’s solicitors, enclosing representations from the Offender himself.  I have read these documents and shall return to them.
8.  My first task is to consider the seriousness of the offence.  In doing so I have had regard to the principles set out in Schedule 21 to the Act and any applicable general guidelines relating to offences: see section 269 (5) of the Act.
9.  In applying those principles I have to consider the appropriate “starting point” for the minimum term.  The “starting points” for offenders over 18 years, as is well known, are if the seriousness of the offence is “exceptionally high” a “whole life order”, if “particularly high” 30 years and otherwise 15 years.
10.  The factors identified expressly in the Act as rendering the seriousness of an offence “exceptionally high” do not apply here.  Nor do I think that any other factors bring this offence into that category.  Paragraph 5(1) of Schedule 21 provides for the 30 year starting point where the court considers that the seriousness of the offence is “particularly high”.  Paragraph 5(2) of  Schedule 21 provides,
   “Cases that ….would normally fall within subparagraph [5](1)(a) include ….
              (b) a murder involving the use of a firearm or explosive……..”
11. Under the present law, therefore, the “starting point” in the present case would be      30 years.  The next stage is to consider the aggravating and mitigating features of the offence.  Examples of such features are set out in paragraphs 10 and 11 of the Schedule.  I do not find that any of the statutory aggravating features apply in this case.  Equally, it is not easy to apply directly any of the mitigating features identified in paragraph 11.  At trial the true facts of the case were obscured by what the Offender now readily admits was a lying account told by him out of fear of going to prison and being taken away from his girlfriend and his children.  In his own written account before me the offender gives a different version of events.
12.  In that account the Offender confirms the suspicion of the connection of the offence to drugs which was suspected at the time of trial.  He says that he was a habitual user of hard drugs.  The man named Watson, mentioned in the trial judge’s report, was, it is said, a drugs dealer, as was Williams, the victim of the other section 18 offence.  The Offender came under pressure from Watson in particular because of money “owed” for the supply of drugs.  The victim of the murder was unknown to the Offender.  On the day in question, says the Offender, Watson was pressurising him to travel to Jamaica to collect drugs and bring them to this country to discharge the “debt”.  The Offender says he wanted to hurt Watson and pulled the gun out and fired it.  He had meant to hurt Watson, but not to kill him and had no wish to harm Seko Brown, whom he did not know at all.
13.  It seems to me clear that, even on this account, the Offender intended to cause    serious harm to Watson, and maybe to Williams.  The fact that, with this intention, the principal victim was Brown does not provide any material mitigation.  Even if there was no specific intention to kill, the firing of a gun in such circumstances must clearly have been in a state of recklessness as to whether death would or would not be caused to someone.  In the circumstances, perhaps the only slight mitigation at the time of the offence was the drugs induced state of the Offender to which Watson may well have contributed, but Brown certainly did not.
14.  I am not convinced that, if this matter were being dealt with after a trial today, there would be cause to reduce the minimum term below the starting point of 30 years.  The best the Offender might hope for would be a term of no less than 28 years, less the period spent in custody on remand.
15.   This is, however, a “transitional case”, to be dealt with in Section 276 of and Schedule 22 to the Act, since the Offender had not been notified of a minimum term set by the Home Secretary before the commencement date, i.e. the date of coming into force of section 268 of the Act.  Paragraph 8 of Schedule 22 provides that the court may not, in such a case make an order specifying a minimum term greater than that which under the practice followed by the Home Secretary would have been likely to have been notified to the Offender.  As to this, the Court has the guidance of the consolidated criminal Practice Direction, paragraph IV.49.
16.  Paragraph IV.49.17 indicates that where, as in this case, the offence was committed before 31 May 2002 the best guide to the Secretary of State’s practice is to be found in the letter dated 10 February 1997 of the then Lord Chief justice, Lord Bingham to the judges.  In that letter Lord Bingham took 14 years as the proper minimum period in an “average”, “normal” or “unexceptional case”.  He gave examples of aggravating and mitigating features.  One aggravating feature identified was the use of firearms, whether for carried for offensive or defensive purposes.  Lord Bingham stated that the fact of a defendant being under the influence of drugs or drink was so common as to be usually neutral for these purposes.
17.  It may well be that in this case in making his recommendation to the Home Secretary the trial judge was using the later Practice Direction, issued in 2002, which adopted a lower “normal starting point” of 12 years: see paragraph IV.49.24 et seq.  Again, under that Direction, the use of firearms was an aggravating feature.  These points may well have led the judge to recommend a term of 15 years in the Offender’s case.
18.  Bearing these matters in mind, I think that adopting the practice set out in Lord Bingham’s letter, rather than the 2002 Direction, the Home Secretary would have been likely in this case to notify a minimum term of about 17 or 18 years.  But, this is a curious transitional case, because the judge was probably using the then new Practice Direction which was rather more generous to offenders than Lord Bingham’s practice.  I would not, therefore, intend to recommend a term longer than that actually recommended by the trial judge.
19.  I have considered further the representations made by the Offender and by his solicitors.  The latter urge upon me a term of 12 years as being appropriate, having regard to all the features pointed out.  However, having examined this case in light of the criteria set out in the Act, I do not think that a reduction below 15 years is appropriate.  I recognise that the Offender has made some considerable progress in prison, but I do not think that this is sufficiently exceptional to call for any further reduction, even if that would otherwise be permissible in the light of conflicting recent High Court decisions on this subject.
20.  As a result, I specify a minimum term in this case of 15 years, less 6 months 12 days (the period of custody on remand) after the expiry of which the early release provisions shall apply to the Offender.


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